Women and Equalities Committee
Oral evidence: The work of the Equality and Human Rights Commission, HC 1379
Wednesday 12 July 2023
Ordered by the House of Commons to be published on 12 July 2023.
Members present: Caroline Nokes (Chair); Elliot Colburn; Carolyn Harris; Mark Jenkinson; Kim Johnson; Lia Nici and Ms Anum Qaisar.
Questions 1 - 83
Witnesses
I: Baroness Falkner of Margravine, Chair, Equality and Human Rights Commission; Marcial Boo, Chief Executive Officer, EHRC; Melanie Field, Executive Director, Strategy, Policy, Legal and Wales, EHRC.
Witnesses: Baroness Falkner of Margravine, Marcial Boo and Melanie Field.
Q1 Chair: Good afternoon, and welcome to this afternoon's meeting of the Women and Equalities Committee and our annual conversation with the Equality and Human Rights Commission. Can I thank our witnesses? This afternoon, we have Baroness Falkner of Margravine, the Chair of the Equality and Human Rights Commission, Marcial Boo, the chief executive of EHRC, and Melanie Field, executive director of strategy, policy, legal and Wales at the EHRC. You have all been here before; I do not need to give you the drill. Committee members will ask you questions in turn; if at any point any of you wish to come in with additional information, please just indicate, and I will try to bring you in.
Before we begin, in consultation with the Speaker, I have waived the rule on legal cases in relation to the recent cases in Scotland on the definition of sex in the Equality Act. However, can I encourage witnesses to make reference to such cases only if strictly necessary?
Baroness Falkner: Madam Chair, it is a pleasure to be here. We are delighted to have the opportunity to showcase our work over the last several months, although we saw you only eight months ago. I wonder, Madam Chair, if I might make a brief statement, very brief indeed, just before we start? It will be very brief, less than a minute.
Chair: Less than a minute is fine.
Baroness Falkner: Thank you. I am aware that the Committee is intending to ask us today about the ongoing internal investigation which has been the subject of media leaks and speculation. The Commission's deputy chairs who, under our governance procedures, are responsible for overseeing the independent investigation, wrote to you, Madam Chair, about this last Friday 7 July. In their letter, they explained the confidential and internal nature of this matter, and that we will be unable to answer any questions relating to it.
I regret we are unable to assist the Committee on this matter. I felt it important to make it clear from the outset that we must, therefore, and with all respect, decline to answer any questions about the allegations or investigation. The Committee will understand this is a strictly confidential matter under our internal rules and in line with relevant ACAS guidance. Discussing it in any way would risk breaching the fairness of the process and the privacy and data protection rights of the individuals involved.
Q2 Chair: Thank you. We have no intention to ask you any questions about the content of the investigation; please be assured on that point. I absolutely understood the letter that was sent to me by the commissioners. You may, however, get some questions on process and timing, as I think the Committee would be very interested to know at what point the investigation might restart. Can you confirm whether that is an acceptable question?
Baroness Falkner: No, because we simply do not know. All three of us are recused from the decision making in these matters, so we simply cannot comment. I think the deputy chairs said in their letter to you that they will advise the Committee when they arrive at a conclusion.
Chair: That is fine; you will get no questions on it whatsoever. Thank you very much for that. Elliot.
Q3 Elliot Colburn: Thank you very much, Chair. All my questions, Baroness Falkner, will be directed to you. It will be no surprise to you that we are very interested to ask some questions around the advice you gave the Government in regard to the definition of sex in the Equality Act. First, could you very broadly outline what prompted those discussions in the November board meeting about the definition of sex in the 2010 Act?
Baroness Falkner: What prompted those discussions took place before I came on board the Equality and Human Rights Commission because, as you will be aware, there was a consultation in 2018 on LGBT rights. This Committee has consistently reviewed in its work on the Equality and Human Rights Commission. I think there was a report in 2019 and a subsequent report on GRA reform—it might be the other way around; the GRA reform might have come first—where the Committee made commentary about the fact that we needed clarity in the definition because gender and sex are used interchangeably. According to the legal advice we have had, this is extremely unusual in legislation. Once I came on board, we were already embarked on a consultation on our strategic plan and we were surprised to see that the No. 1 item, the greatest priority the public had in terms of the work they wanted us to do on our strategic plan, had to do with clarifying issues to do with sex and gender in the Equality Act, so that was a pointer.
We mention in our strategic plan that we were intending to do that as long ago as 2021. We wanted to approach it, Mr Colburn, in a considered, reflective and incremental way, careful step by step. We were cognisant that in Scotland—I think I am allowed to mention the fact that Scotland was undertaking gender recognition reform—there were moves apace across different jurisdictions to look at these issues, and, as I say, your Committee had raised them. As long ago as 2019, the Committee had asked us to issue guidance on single-sex spaces exceptions because of the lack of clarity for service providers. We spent all 2021 preparing to do that.
We published that in April 2022, so that was the first incremental step. In advance of that, there was, I think, the Government's draft consultation on conversion practices where, again, there had been issues of definition around being trans and so on. This was an ongoing thing. There was frequent litigation. We continued to press in litigation with For Women Scotland and Fair Play for Women. We took other enforcement activity, for example, Jaguar Land Rover, on the section 23 agreement, where we continued to press the law as we see it, but that does not mean we do not understand that there is confusion about the law.
While you apply the law as you find it today, that does not mean you do not accept the level of time being expended by service providers, public bodies and so on, trying to understand a very complex and obtuse set of legal norms which were not clear.
We thought it was right to start looking at this once we had done our single-sex spaces exceptions. We commissioned it last summer, and we looked at it in four board meetings over 23 November, 18 January, and 3 March, where we had a dedicated three-hour board meeting only to the issue because the other meetings were regular board meetings where we spent two or three hours each, and then a final two-hour meeting on 30 March. In total, we looked at between 150 and 200 pages of advice. We had more than 11 hours of deliberation for a whole board meeting, which is quite exceptional on a single issue. I do not believe EHRC has ever spent that much time on any issue before in terms of its board.
We took five months. We looked at emerging evidence. The most important thing to say is that I am incredibly proud—not just impressed, but proud—of the performance of our staff who were experts in this area, and, most importantly, our commissioners. We had such deep, profound and balanced discussions that people who left those meetings would simply shake their heads and say, “This is the most important and thoughtful discussion I’ve had on these matters in a very long time.” I am extremely proud to have been part of that process and to have led it.
Q4 Elliot Colburn: It sounds as if there was a significant amount of work going on already. The EHRC received a letter from the Minister in February asking for advice on the definition; did you take any further actions once that letter arrived, beyond what you were already doing following the November board meeting? Could you talk us through what happened? What did you do? What advice did you seek? How did you engage with the Scottish and Welsh committees? How did you come to the final conclusion that was sent back to the Minister?
Baroness Falkner: Yes, indeed, of course. What happened when we got the letter from the Minister for Women and Equalities was that we had already started to narrow our focus. We had been trying to narrow our focus on what was the appropriate vehicle in terms of legislation: should we look at the Gender Recognition Act? Should we look at the Equality Act? What is the appropriate space that we should look at? We had been narrowing our focus in that regard. Prior to getting the letter from the Minister at our 18 January meeting, we had already decided to specifically home in on clarifying the meaning of sex in the Act. Once the letter directed us in that direction it made our job a little easier in the sense that it made the job more manageable. It gave us a narrower focus on which to concentrate, and we relooked at all the evidence we had in that regard. We had two subsequent meetings—on 3 March and 30 March—to deal with those particular issues. We took advice. I think you asked about what advice we took, did you not?
Elliot Colburn: Yes.
Baroness Falkner: We took advice on the legal implications in a narrower sense, the legal implications in a wider sense, all the litigation there had been in that area, and what judges had found. We took advice on the policy implications, on how it sat with the public sector equality duty, and how it sat with our single-sex exemptions. We took advice on stakeholder handling—basically, all the duties incumbent upon us—consultation with our statutory committees, which you specifically asked about. There were meetings with our Scotland and Wales committees prior to the 3 March board meeting, and they gave the board their advice. We had ARAC, our audit and risk assurance committee. It is only an advisory committee; it is not statutory. Nevertheless, they discussed it as well. We went round the houses quite comprehensively.
Q5 Elliot Colburn: Thank you very much indeed. Moving on to your advice on the definition—again, a broad starting question—could you set out the reasoning behind the EHRC's advice to the Government on the definition of sex?
Baroness Falkner: You will have seen our 19-page letter written on Monday 3 April to the Minister for Women and Equalities; that is the basis. Would you like me to briefly go through it?
Elliot Colburn: If you do not mind briefly summarising for the benefit of the Committee.
Baroness Falkner: Thank you so much; I appreciate you giving me that opportunity. The first thing to say is that this letter is a starting point. It is only a starting point; we made that clear. It is our initial response. Of course, we suggested to the Government that if they wanted to pursue work in this area it is for them, the Government, to get detailed policy and legal analysis.
I have referred to the consultation on our strategic plans, so I will not repeat all that but, if you do not mind, I will tell you exactly what we said there. In our 2020 strategic plan we said, “We will contribute to public debates and clarify the law on equality and human rights issues, particularly in the area of balancing competing rights.” The Equality Act—to go back to 2010—attempted to strike a reasonable balance between the rights of people, and it did a very good job of striking that balance with nine different protected characteristics.
You will know that 13 years on, society has evolved considerably in terms of its understandings of the protected characteristic of sex and gender reassignment, and language has evolved. For example, the Act refers to people as transsexuals, but we do not refer to that, and the courts do not refer to that any longer. We are responsible for regulating the gender pay gap; it is called the gender pay gap, but what it really looks at is sex, it does not look at gender.
Today, many trans people would not describe themselves as transitioning from one sex to the other. Rather, they would tell us they live in a more fluid gender identity, or without any reference to a binary gender identity; male or female. They are unlikely to be required to provide proof. Previously, people were required to hold a GRC; that is no longer common. There was also a lack of clear jurisprudence.
In terms of the meaning of sex, the Gender Recognition Act 2004 provides that the acquired gender of a person is the legal gender for all purposes. That, of course, is very broad and impacts on the provisions of the Equality Act. This concept of legal sex was our starting point, but there were questions of legal interpretation. We came to the view that there was no straightforward balance, it was not going to be on the one hand/on the other hand as we looked at it. It was rather broader than that, and we came to a view that there were eight areas where, on the whole, people would be advantaged by clarification: pregnancy and maternity, freedom of association for lesbians and gay men, freedom of association for women and men, positive action, occupational requirements, single-sex and separate sex services, sport, and data collection.
However, on the other side, if the Government were to implement this change, it would be more ambiguous or potentially disadvantageous in three areas: equal pay provisions, direct sex discrimination, and indirect sex discrimination. These were, fair and square, to do with where the Equality Act sits, rather than the Gender Recognition Act.
As we are the national human rights institution for the United Kingdom, we also had to look at the human rights implications, particularly article 8, the right to privacy, in the European convention on human rights.[1] We took external legal advice for that because we wanted to be absolutely certain we landed in the right place on that. We found that, in general, Strasbourg finds that if what is at stake is simply an individual's right to recognition—which may include the right to marry and the right to pension in the acquired gender—that courts find violations of privacy; they find violations of article 8 rights.
This, of course, only applies to people who hold GRCs. I am not talking in generality; they are article 8 rights. Where general rights were engaged, and where the state is balancing competing rights—which was our preoccupation in looking at all this—then, for example, Strasbourg allows a wider margin of appreciation. Some people may say human rights law might actually require the statutory recognition of biological sex. Should the Government proceed, these are all tricky matters they will have to review.
We looked at all this and thought that, on balance, redefining biological sex in the Equality Act would create rationalisations, simplifications, clarity and/or reductions in risk for maternity services, for providers and users of other services, for gay and lesbian associations, sports organisations, and employers. We, therefore, concluded that it merits further consideration. Most importantly, we said to the Government that they themselves must have due regard to the public sector equality duty and, in particular, they must consider any possible disadvantages for trans men and trans women.
Q6 Elliot Colburn: Humour me, Baroness Falkner; this may seem like a ridiculous question, but I am going somewhere with it. In your definition of biological sex, what did you mean by that?
Baroness Falkner: As you know, we did not define biological sex. We think it is for Government—if they decide to pursue as they do with all legislation—to define what the terms are.
In our public response to the conversion therapy consultation, we said that Government needed to define in a draft Bill what being trans meant. We leave it to Government, but most people would recognise that biological sex is a categorisation which accords with reproductive functions, for example, where a woman is recognised as being of one sex in the Equality Act. A woman is a person whose body is designed to produce eggs, and a man is a person whose body is designed to produce sperm. That is the way most people would understand it. We are not scientists; this is not the definitive word on it. It is for Government to decide how they wish to define it. They asked us to look at sex in the Equality Act. It is for them to come to a view on what they mean by that, not us.
Q7 Elliot Colburn: That is incredibly helpful; thank you, Baroness Falkner. Did your advice consider existing definitions in law on biological sex or, again, are you leaving that to Government to decide what definition they would like to use?
Baroness Falkner: We were aware of existing definitions. Going back as far as Bellinger v. Bellinger, a court case where Lord Justice Nicholls—I think it was—referred to how common law has recognised sex and gender for hundreds of years. We did not particularly go back over hundreds of years of legislation to see what the different meanings of gender or sex were. The words were more frequently used interchangeably. We had discussions in the House of Lords about the Ministerial and other Maternity Allowances Act 2021. Lord True, who was Minister for the Cabinet Office at the time, gave us the legal definition of a woman as we understand it in law, and he was correct. We looked at it in the round. We have also intervened in court cases where we have described current law and we have described legal sex.
Q8 Elliot Colburn: Given that you believe this is a matter for Government to decide on the definition, are you not concerned that your advice is based off a definition which you are not prepared to come to yourself as an organisation? You have given the Government advice on clearing up what we mean in the Equality Act, but you are not prepared to define that definition yourself. Are you not concerned that that might be a problem?
Baroness Falkner: No, we say in our letter, “Should the Government wish to pursue work in this area, we recommend detailed policy and legal analysis.” We would be happy to support that process. Again, these things should be carefully done, they should be handled with care, and conversations should happen, as they do with every Bill.
Just to clarify, since this is a public hearing, it is routine and normal for us to advise the Government on legislation. For example, we advised the Government on the Worker Protection (Amendment of Equality Act 2010) Bill, which is currently going through the House of Lords. We have advised the Government on the Employment Relations (Flexible Working) Bill. It is normal for us to interact with the Government Equalities Office and the Government on any legislation, as we always do, for example, in public consultations. We frequently advise them to publish a draft Bill. In this case, if they were to go forward, we would suggest they provide draft wording on any amendments they might have. We would have to see what they are intending to do, but we might suggest to them that they have pre-legislative scrutiny on it, perhaps a Joint Committee of both Houses, Mr Colburn, to which I am sure you would make a great contribution.
Q9 Elliot Colburn: I will take the compliment; thank you very much indeed. Did you specifically consider what a biological definition of sex in the Equality Act—should it be defined as such—would mean for trans people holding a gender recognition certificate? I mean exclusively for those who hold a GRC, not the wider umbrella of the term.
Baroness Falkner: Yes, we did, and we came to the view that, if this change happens, it will put trans people with GRCs on the same footing as trans people without. At the moment, in general, service providers do not distinguish between trans people with GRCs and trans people without because, of course, it is a criminal offence under parts of the Gender Recognition Act to ask to see proof of a gender recognition certificate unless specific conditions are met. This is part of the lack of clarity.
In our considered judgment, it would be better for all trans people to be treated the same way and to be on the same footing, rather than an incredibly small number, with very long waiting lists, incredibly long waiting times, going through a very bureaucratic process that takes years and years. We thought it better to put all trans people on the same footing, and then to provide clarity.
One of the things I would like to put on the record through you, Mr Colburn, is that we believed, as a board, that if the Government were to go here, it would give clarity to trans people as much as it does to others. We were concerned that they should have clarity, because individual trans people may not have the resources to take legal action through the courts. A few brave ones do but, on the whole, as we know with all kinds of discrimination, people tend to just lump it and get on with their lives, and that is wrong. The law should provide them with clarity.
Q10 Elliot Colburn: Is the EHRC supposed to be taking proactive litigation to create that legal clarity in and of itself? Is that not the whole purpose of the Commission?
Baroness Falkner: Indeed, and we do. We do. We take enforcement action, we intervene in court cases, and we are proud to do so.
Q11 Elliot Colburn: I completely understand that you intervene, but you have a relatively low percentage where you start legal proceedings in and of yourselves. It was quite clear when the Commission was established that it was expected to do so. Why do you think there is that disparity? I appreciate that you intervene in a large number of cases, but in terms of proactively starting litigation as a Commission, it is relatively low.
Baroness Falkner: It is a really good question—I am not saying that in a patronising way—because it is something we in the board discuss on a regular basis. We keep asking why we are not getting more cases. We look out for cases that affect trans people. Enforcement action with employers—which is where we tend to come in more—perhaps comes before us in a more ready fashion through the Equality Advisory Service, which is the conduit into litigation of enforcement and compliance for our team.
Grievances against employers may be why more of those are directed to us, rather than individuals seeking to clarify the law as individuals. We really do not understand that, but it is something we ask the Executive to look into on a regular basis. In interactions with our stakeholders, for example, Stonewall, I do not recall ever having a meeting with Stonewall where I have not asked them to, “Please, direct cases to us. If you come across cases, please direct them to us.”
Q12 Elliot Colburn: At the beginning, you particularly mentioned the confusion around the definition. You have mentioned extensive litigation, and you are completely correct, there has been. A concern of this Committee—and, indeed, surely, the Commission as well—is the particularly unpleasant national discourse, not just in this country but around much of the world. Do you not think the time has come for wholesale reform of the law?
You have mentioned that terms in the Equality Act are outdated; you mentioned the GRA is particularly old. We have various different groups: women's organisations that are particularly concerned about the protection of sex-based rights, trans groups particularly concerned about discrimination, and a very nasty conversation going on where people do not know what to think. Quite a lot of people watching do not know what to make of all of this at the moment. Should the Commission be saying to Government, “You know what, you can come to us for advice, but the law is out of date. I’m afraid you have to do your job as a Government and go away and reform and update the law to make it more modern for the benefit of all”? Is that not something you would agree with?
Baroness Falkner: You would expect me to say this, but the Equality Act is a precious thing. It is the first time in our country that we have had a consolidation of all the different strands of discrimination, and it is something quite special. I myself, as a parliamentarian, worked on the Act in the Lords, and it was a pleasure to see us pulling together all the different strands of discrimination and putting them into a single body that would have responsibility across the nine areas.
You make a really valid point because we face this all the time in our duty to foster good relations. It is very hard to foster good relations between groups that share protected characteristics where there is a great deal of contestation in the debate. It is a challenge but, as much as we are the regulator of the Act, our first duty is to ensure the Act works as best it can.
It is not only a matter for Government, but a matter for Parliament as well. If Parliament chose to set up a post-legislative scrutiny committee, which I have argued for in the past—I might even have argued for it here, I do not recall—they could sometimes take the few areas of an Act that are not working terribly well, take a long look at them, and come to a view of what does and does not need to be looked at.
The EHRC was set up under the Equality Act 2006 and was granted specific powers and functions. The post-legislative scrutiny committee should be a joint endeavour between EHRC, the regulator accountable to you, accountable to Government through the Minister, and accountable to Parliament; litigating and using its powers in the courts to bring society together under its duty to foster good relations to say, “Let us do this,” because our resources shrink on a daily basis. I hope we will have an opportunity to talk to you about our resources. We are coming to a stage where it is increasingly challenging for us to deliver what the Act has demanded of us since 2010, never mind later.
Q13 Elliot Colburn: You are certainly not alone in wanting to bring about a more harmonious discourse on these matters. I am being very selfish with my time, so I want to bring it to an end and hand back. Final question: a UN expert has argued that the advice you gave Government allows Government to carry out discriminatory distinctions currently unlawful under UK law and will remain so under international human rights law. Very briefly, could I ask you for your response to that?
Baroness Falkner: I will ask Melanie to find me the right part of my brief, but I can give you an overview of where we are on that. Mr Madrigal-Borloz visited the United Kingdom a few months ago. He saw us, I think, on the penultimate day of his meetings in the United Kingdom, and it was a brief meeting.
One of the problems with explaining UK law to foreign interlocutors is that the Equality Act—I have just waxed lyrically about how special it is—is unique. It is a piece of legislation that is not replicated anywhere else in the world. Its interaction with the Gender Recognition Act is necessarily, therefore, unique. We got the impression that he did not seem to understand the interaction between the two. He made an end of mission statement which was extremely critical. It criticised us for not having a definition of biological sex; we have just covered that. He claimed the objective of the EHRC was to offer the Government a formula through which they could carry out discriminatory distinctions currently unlawful under UK law.
We thought this mischaracterised our position, was wrong, inaccurate, and I wrote to him immediately about it. He has not had the courtesy to respond to my letter. I have followed it up with a second letter, which is on our website should people wish to look at it. I have copied that letter to the chair of the Human Rights Council. It is extremely unhelpful when the United Nations thinks it can go into countries and misrepresent the law of that country because it serves to instil fear into the very people whose rights we are here to defend, which is trans people.
Elliot Colburn: Thank you, Baroness Falkner. I am sure we could go on, but I will not.
Q14 Ms Anum Qaisar: Marcial, this is clearly a difficult time for the EHRC. I am interested in getting a little more information and knowledge on how staff at all levels of the organisation are being supported; what provisions are in place?
Marcial Boo: There are many kinds of provisions in place, as all responsible employers have. We are a responsible employer. We have a great team of about 220 dedicated, professional people working in all kinds of functions, from finance to the law. We have the normal HR practices and people policies you would expect of any professional public body, such as performance management processes, grievance processes, and IT policies. We have a whole range of policies in place and those are regularly reviewed; we make sure they are up to date. We conduct annual surveys of our staff. We have internal networks and focus groups. We have the whole range of professional practice you would expect of a body such as us.
Q15 Ms Anum Qaisar: Let me change the wording slightly. Have any changes been made in recent times to support staff?
Marcial Boo: Yes, every year we make changes to review and update our policies.
Q16 Ms Anum Qaisar: Can you give me an example of something that has been changed recently to support staff?
Marcial Boo: Yes, we have updated our induction processes so that new staff coming into the organisation have a really focused and effective way of getting to know the nature of our work and get to meet people effectively. We have been looking at our corporate values for a while and making sure they are up to date because they were created when the organisation started over 10 years ago. There are a number of things that we do on a rolling basis. When we conduct our staff surveys, we look at the findings and see whether there are other things that staff themselves have indicated they would like to see refreshed, and we do that through the year when resources allow.
Baroness Falkner: Would you like to hear about staff training we have conducted over recent times? We do comprehensive updating of our staff training.
Ms Anum Qaisar: We are pressed for time because we are finishing at half-past 3, and I know that other people have questions.
Chair: The question was about support, not training.
Q17 Ms Anum Qaisar: The EHRC has received significant criticism online. What support is being provided to frontline staff dealing with this form of abuse or abusive telephone calls, etc?
Marcial Boo: I very much regret that some of our staff have had to read social media comments that are difficult to see. Obviously, as this Committee knows, we work in a contested space, and people have strong opinions on some of the issues that we regulate. The first thing is that line managers themselves need to provide a supportive environment for staff, so that people feel they can talk to their boss about issues they are having to deal with in their workplace. We also, as I have mentioned, have other support processes such as internal groups, networks and what have you, so there are peer-to-peer groups. Then, obviously, we have senior management people such as Melanie and myself who are available to talk to staff about concerns that impact on the organisation as a whole.
Q18 Ms Anum Qaisar: What specific programmes or policies have been put in place to ensure you are building trust within those leadership roles in the organisation?
Marcial Boo: Do you want to come in, Kishwer?
Baroness Falkner: We continue to promote support for our staff through staff networks. We have staff forums, we work alongside trade unions, and we provide training, lunchtime learning sessions, and health and wellbeing support. We try to have a comprehensive offer to all staff.
Q19 Ms Anum Qaisar: Thank you so much. Last question from me: Marcial, does the EHRC have a strategy for succession planning in senior roles, and have you, as an organisation, engaged with the UK Government on this matter?
Marcial Boo: In answer to your first question, yes, absolutely, we do. We have an annual process of looking at senior roles and structures, and one of the things we have been doing on a gradual basis is making sure we have contingencies for when people leave and putting recruitment in place. We do not talk to the UK Government about our senior structure because we are an independent body, and we have a different kind of relationship with Government. They do not approve our appointments at executive level.
Q20 Chair: Thank you. Staying with staffing, Marcial, you just spoke about the normal HR policies. Do you conduct exit interviews with staff who leave?
Marcial Boo: We do.
Q21 Chair: Are those exit interviews giving you any indication of reasons? Is there one reason that sticks out more than others?
Marcial Boo: Yes, there is. The biggest reason is pay and conditions. Slightly less than half of people in their exit interviews say they are moving on for promotion opportunities and to progress their careers, which is an entirely reasonable and very positive reason for people leaving. We recruit good, talented people, we give them interesting work to do, develop them, and then they move on to progress their careers. That is the biggest reason.
Q22 Chair: Did your October staff survey indicate that as well?
Marcial Boo: The staff survey presents a mixed picture, as all staff surveys do. There are lots of positives in there, and there are some areas in the staff survey which, rightly, we look at to make sure we can keep improving the organisation. One stat in the staff survey is that 82% say they work in a supportive team and they like their managers, so that is a really good starting point; we have some great people and some of those who left moved on for promotion.
Q23 Chair: I think it was back in November when I was last raising concerns with you about staff turnover, you used the phrase, “I do not think there is any particular group or part of the organisation experiencing higher or lower turnover.” Was that accurate?
Marcial Boo: It is accurate. I have some statistics which I am very happy to tell you now, but yes, that is absolutely spot on and remains the case.
Q24 Chair: Do more LGBT people leave than other members of staff?
Marcial Boo: No; actually, in the financial year just finished, 2022 to 2023, the figure both for staff as a whole and for LGBT people is 16%. We are about to lay our annual report and accounts in Parliament next week, I believe, when we have a slot.
Q25 Chair: In the information we had last month, you indicated a figure of 16%. Is that the same figure you present to your board?
Marcial Boo: It is. Those figures are in the financial year that we need to publish our accounts on, but the latest figures to the end of May show a decline in turnover to 13%. I am very happy to provide more information about the detail.
Q26 Chair: Can we talk about the comms team? Anum made a very pertinent point about those staff who might have to be manning your social media content, monitoring media. Do more of your comms team leave than other departments?
Marcial Boo: We provided you with very comprehensive information about—
Chair: About 50 % of them have gone.
Marcial Boo: Just 40%; that is a team of 20-odd people. As all public bodies experienced, and indeed other organisations too, in the COVID years, turnover across the board went down as people stuck with their jobs during COVID. When restrictions were eased, people did start moving and there was, in some press, talk of a great resignation.
We had an increase in turnover too, like other organisations, and because of the small numbers of people—20-odd people in a comms team—if we had eight or so people leave, which is more or less what it was, then it shows up quite markedly in statistics. We have recruited all these roles, and indeed more, with some really exceptional people; we have had a great field of people applying to the organisation.
To come back to the point that you made about LGBT people, we have more people who identify as LGBT in the organisation now than we did 12 months ago, so I have no concerns about recruitment, I have no concerns about turnover, and I have no concerns about the quality and professionalism of the staff.
Q27 Chair: I am not questioning the quality and professionalism of the staff. I am interested in digging deep into the numbers. Last time, you told us that millennials left in higher numbers. Are they over-represented in some departments as opposed to others? Can you talk to us about young people who might come and join the organisation and leave very rapidly?
Marcial Boo: Twenty eight per cent of our staff are aged 25 to 34; that is a fairly standard proportion for an organisation such as ours. In their careers, people at that age tend to move quicker than those of us who are a little longer in the tooth. I find it quite normal, and indeed acceptable, for people in their 20s to come into an organisation like ours, get some good experience, and have examples of good practice that they can then learn from and take elsewhere after a couple of years.
Q28 Chair: You have had a lot of legal directors over the last five years. How many of those have left rather than being promoted internally?
Marcial Boo: In the last almost two years that I have been here, we have had one legal director leave.
Q29 Chair: Is it showing an improving picture? Does that pattern translate to the rest of the legal team? Do you have any worries about the legal team in the same way that I express worries about the comms team? No.
Do you do entry interviews as well? When you have a new starter, do you ask those people why they have chosen to come and work for the EHRC?
Marcial Boo: Not formally, but in the interview process we ask everybody why they have chosen to apply. The responses we get in the interview process are very encouraging because the organisation has a strong reputation; we do good work and people know that.
Q30 Chair: Kishwer, can I ask you some questions about board visibility? When you did your pre-appointment hearings, you said you wished to be judged by how visible the EHRC was as an organisation. That seems some years ago now. How do you think it is going on that front?
Baroness Falkner: Could I just clarify one point about the previous set of questions? Exit interviews are not mandatory; only about 30% of staff do them or did in the last year.
Q31 Chair: What sort of percentage complete the staff satisfaction survey?
Marcial Boo: Eighty four per cent.
Chair: That is very high.
Baroness Falkner: Yes, we are pleased with the figures.
Q32 Chair: Why are only 30% of people who leave choosing to tell you about why they leave if 84% of staff members want to talk to you about how they are feeling?
Baroness Falkner: Like perhaps most of us in human nature, once we have made a decision to move on, our level of engagement reduces a little. In all my working life, there are times when I myself have done exit interviews and there are times when my mind has been elsewhere; you are thinking of your new life, not your old life and you sometimes would not think to do that. Sorry, you asked me about media.
Q33 Chair: Board visibility and how high profile you think the EHRC has been, how successful you have been in making sure the EHRC is visible.
Baroness Falkner: It is increasing day by day. Our enforcement work now gets enormous amounts of engagement. I am hoping somebody will find me the figures. When we announced our engagement with McDonald's some months ago—section 23 agreement on sexual harassment, I think it was—that had an enormous response. Likewise with IKEA, we had a very large response. Our work on advising Parliament on legislation is also viewed; people read our briefings.
I am hopeful of finding the page, so I will be able to actually give you figures. Between November 2022—the last time you saw us, Madam Chair—and June 2023, more than 2.4 million people accessed our website. In the last financial year, 3.7 million people visited the website. I have mentioned McDonald's and IKEA; those actions were widely covered across national broadcast, print, and digital media, as well as regional and trade outlets. The conclusion of the Labour Party Action Plan elicited a great deal of interest.
Q34 Chair: This was a subject I visited with Marcial in November; perhaps you will answer now. The number of media mentions used to be in your annual report; it dropped off. Is it back in?
Marcial Boo: I believe it is, yes. We do have that.
Q35 Chair: How is that going? Whilst your own stats on your website are interesting and important, how effective have you been in increasing the visibility of the EHRC?
Baroness Falkner: I can give you some stats. During the last financial year, we attracted 2,400 pieces of media coverage: 5.5% were negative, 51.4% were positive, and 43.1% were neutral or balanced, in other words, simply recorded what we were doing. We were very encouraged by that.
Q36 Chair: Do you think you are hitting your own goal of people knowing that you are there for them?
Baroness Falkner: I would like to think so.
Q37 Chair: Are you measuring it?
Baroness Falkner: I do not measure because I am in the public domain, and I get a lot of correspondence directly to other email accounts which is impossible to measure. I do not have any capability of doing that. How do we measure it? Marcial or Melanie, would you be able to help me with that? Sorry, I have found it; Melanie has just pointed it out to me.
Since December 2020, social media channels have gained more than 22,000 followers to a total of 102,700. The overall engagement rate—measured in comments, likes, and shares relative to views—has increased from an average of 2% in the latter half of 2021 to 2022 to an average of 3% in 2022 to 2023, whereas 1% to 5% is considered a good engagement rate. We are moving in the right direction even if we are not right there at the top. The metrics show that we have become more visible. I have mentioned some areas, but being visible is not a goal. The importance is that people should know there is a body.
Q38 Chair: Almost the same answer you gave in November. It is okay, I can read it.
Marcial, can you just talk me through one of your submissions to the Committee? Your submission said that 15% of staff who responded to the staff survey reported experiencing bullying and harassment, and then you go on to say that is 8% lower than the civil service average. Is it?
Marcial Boo: Eight percentage points worse than the civil service.
Chair: That is not what your submission said. It said it was 8% lower than the civil service average. It is in fact 8% higher, making it twice the level of the civil service average, which is an interesting stat.
Q39 Mark Jenkinson: Baroness Falkner, I think Mr Colburn said earlier that we would come back to resources, which is what I intend to do. You told us last year in November you had not had formal budget allocation. Have you had your budget allocation for this year and next year yet?
Baroness Falkner: Yes, we have had our delegation for this year, but I got a letter from the Paymaster General disappointingly telling us that the Cabinet Office expected to set the same flat cash settlement—£17.1 million—in both 2023-24 and 2024-25. As you will know, with the rate of inflation the way it is, that represents a direct cut.
The Minister for Women and Equalities has a statutory duty to secure such funding as she considers necessary for us. We have had the same figure since 2018, so we are down by something like 34% on where we were—a third—yet I am delighted to say that we keep pushing harder and harder, and we are still producing better results than we were then, but it is extremely challenging.
Q40 Mark Jenkinson: What concerns do you have about that in the way it impacts your work and planning? We touched before on the number of cases you can intervene in, for example.
Baroness Falkner: That is exactly right. Marcial has mentioned staff turnover rate, and we know that millennials are more economically distressed, which may be one of the reasons that they tend to stay for shorter periods, so it undoubtedly has an impact on staff turnover. That has an impact on our productivity because we lose institutional knowledge and memory as our staff go but, despite that, we try to do our very best and prioritise relentlessly.
Last year, for example, because of race discrimination being such a significant part of our work, we set up a race legal fund, to which we have now invested a quarter of a million pounds to take up individual race discrimination cases. Rather than spreading our work evenly, we try to concentrate in areas where we see the biggest problem or where we can make the biggest impact, but it is becoming an extremely challenging issue.
Mr Jenkinson, I see a greater need for us on a daily basis, as you will do in Parliament. The Government committed to tasking us, under the “Inclusive Britain” report, I think the figure was half a million pounds. We have never seen that. The Government want us to take a role on the Online Safety Bill, it wants us to regulate artificial intelligence, this Committee wants us to do some work on menopause. The amount of work we could usefully do, if we had improved resources, would actually save money. This is what I say to the Cabinet Office, we would be able to—and we choose to—do strategic litigation, which other people do not.
For example, if a disabled person is not getting access to transport, we will take that strategic case, we will impact across all transport providers, not the single one who we took to court. That is profoundly important, and if only we were enabled to do that, we would be in a more useful position in terms of the public interest and serving the people of our country. It would be a small outlay for a much bigger gain, and I somehow cannot seem to be able to convince your colleagues of that.
Q41 Mark Jenkinson: I am sure they are listening intently today.
Marcial, you said in the same session that you had been having discussions about a separate budget line, an identifiable budget line, with the permanent secretary and the Cabinet Office. Could you update us on how those conversations are going please?
Marcial Boo: Yes, that was an aspiration partly as a result of the re-accreditation that we had from the United Nations as an A status National Human Rights Institution to increase our financial autonomy. Having a separate identified budget line on the Cabinet Office accounts would be helpful in that regard rather than just be lumped into the general Cabinet Office bucket; we have not made progress on that yet. As Kishwer says, this is all part of wider concerns that we are having to absorb inflation and still carry on performing our statutory duties to promote equality in human rights, which is becoming harder with every year.
Q42 Mark Jenkinson: I am going to move to Melanie now, who has not had much chance to have an input today so far. We are pleased to see reference to our work on sexism and inequality in football in your business plan. Can you set out what that work might look like in practice?
Marcial Boo: We are doing some work in cricket where we are working with the England and Wales Cricket Board. We did some work with Yorkshire County Cricket Club last year and we have done some work with premier league clubs to improve disabled access, so we have definitely engaged in the sporting domain. We are working with rugby in Wales as well where, as you may know, there have been some allegations of racism and sexism, so we are engaged at a high level with them. There is no specific work programme that we are doing in football.
Q43 Mark Jenkinson: The line in the business plan was that you would “work with sporting organisations and service specific providers to promote respect for others and prevent prejudice,” and you would evidence those issues by “identifying opportunities to follow up on the Women and Equalities Committee work or about equality on the basis of sex in football.” Maybe not quite as I had said.
Melanie Field: We did indeed include that in our business plan. This is an area where the matters you have just been discussing about our budget constraints have had an impact. Currently, we have not been able to commence working with DCMS on those issues due to limited resources.
Q44 Mark Jenkinson: Baroness Falkner mentioned the work on the menopause. Is that in a similar—
Melanie Field: No, that is not in a similar situation. We have committed to producing some resources for employers on assisting them to support women who are going through the menopause, and we plan to produce those this year, so that work is on track.
Q45 Mark Jenkinson: Baroness Falkner, the EHSA has just extended the legal agreement with the Home Office in relation to its failure to comply with equality law when implementing hostile environment immigration measures. Does the need for an extension suggest that your powers are not strong enough?
Marcial Boo: I am happy to answer in respect of the agreement but the wider point on the powers, Kishwer, maybe you want to cover that?
Baroness Falkner: I would look to Melanie because she does our negotiations with the Government Equalities Office and the framework document and our powers.
Melanie Field: I would make a general point. Obviously, this was an investigation into the Home Office's compliance with the public sector equality duty. Given the nature of the specific duties in England which apply under the public sector equality duty, they are quite light touch. They only require public bodies to publish one or more objectives and to publish some annual information about how they have complied with the duty, which does not give us very much to bite on as a regulator.
We have long advocated for stronger specific duties under the public sector equality duty. However, we looked at compliance with the general duty with this particular assessment. That is a more complex process, although we were able to do it quite quickly and draw conclusions. We can use the law as it currently stands effectively, but we do have proposals for making it stronger and therefore easier for us to regulate.
Q46 Mark Jenkinson: What happens if the Home Office is still not complying with their duty in a year's time?
Melanie Field: We have provided an extension to give them more time to embed some of the actions they have taken and also to take some actions they committed to that have not yet been completed. If we are not satisfied that they have complied with the terms of the agreement, it is open to us to take further enforcement action. We can apply to the court for an order requiring them to comply, so that is something that we could consider at the appropriate time.
Baroness Falkner: Just as an aside, but an overarching response to our engagement with the Home Office, it has improved considerably in recent times. They are more responsive to us when we write to them, and they do set out greater detail than in the past. I received a letter today on changes to the protest regulations, which I had written to the Home Secretary about. In that sense, they are clearly more aware that we are scrutinising them extremely carefully.
Mark Jenkinson: Hopefully we will see progress.
Q47 Chair: Let me go back to this business plan. What status does it hold within your organisation?
Marcial Boo: I have a copy here; it is a live document.
Q48 Chair: You do not know what is in it, do you?
Marcial Boo: It is 30-odd pages, and we have about 120 different activities which are all being taken forward.
Q49 Chair: No, they are not all being taken forward because Melanie just told us that they were not. The business plan sets out how you will deliver your 2022 to 2025 strategic plan. Yes?
Marcial Boo: Yes.
Q50 Chair: We are agreed on that. Yet, three of you looked at us with blank faces when Mark picked out on a particular theme, so I am trying to understand whether your business plan is something that you are actively pursuing or whether this is a nice to do that you chucked in to this Committee so we would leave you alone. Discuss.
Baroness Falkner: I wonder whether I could explain the way that the scrutiny of our work happens in board.
Q51 Chair: That would be very helpful. How does the board engage with this?
Baroness Falkner: We commission papers; we expect them to provide information. We have a rolling actions log, so we know what they are doing in the areas they are committed to working on, and we have a calendar of board meetings that looks at all the areas through the year that were meant to be delivered and what we expected to happen there. We are given regular updates as to what happens when we are expected to deliver on certain areas. We admit that sometimes things slip, but, on the whole, we are confident, as we review our annual plan year-on-year, that it is the subtext of our business plan over three years.
Q52 Chair: Do you have an annual plan which you hold the board accountable for the delivery of, or they hold you accountable for the delivery, Marcial? Let us work out which way round it is.
Marcial Boo: The board rightly holds me accountable for the delivery of the activities in the business plan. In order for me to seek that assurance from my teams, we have split the delivery into the six strategic priorities that are set out in our strategy. I have individuals who are accountable to me, who are responsible for all our work on health and social care, for example, all our work addressing issues with children and young people. That is the mechanism by which we manage the activity on a month-by-month basis, and that is reported to me in the meetings that I chair internally, and in turn I report to the board.
Q53 Chair: We can all understand that things slip. What percentage of things slip?
Marcial Boo: I do not have a specific percentage.
Q54 Chair: Give me a gut instinct. If you were to say that you were working at 100% capacity, are you there or are you at 80%, 60%, 20%?
Baroness Falkner: I can give you an example. You told us in 2019 that you thought we should produce single-sex spaces exemptions guidance for service providers; it took us until April 2022 to produce that.
Q55 Chair: I do not think it was this Committee; that would have been a predecessor Committee in 2019.
Baroness Falkner: Perhaps it was your predecessor. Particularly with policy work, things might slip because our enforcement action is time sensitive. During policy work, as you look at a particular area of policy, what you discover is that potentially there were other side issues that you had not anticipated. If you are wanting to look at things in the round, it sometimes takes longer than you expect it to, and sometimes you have to go externally for your resources.
An area is the Online Safety Bill and the use of artificial intelligence, for example. Artificial intelligence is a new area of our work, so we have had to recruit expertise in that area as we did not have it internally. On the Online Safety Bill, the parliamentary briefings were quite challenging. it was a large and complex Bill, so we diverted resources away from another piece of work to work on that.
Madam Chair, you will recall that I inserted the word “agility” into our strategic plan. I want us to do more and say perhaps less, and that is what this means. When you see a priority piece of work coming up, you should be able to have the flexibility to divert resources from something that can wait, is not a top priority, into something which is time-sensitive, such as legislation going through Parliament.
Q56 Chair: Who takes that decision?
Baroness Falkner: We take it together as a board because we have a rolling actions log.
Q57 Chair: What role does the board play in that? Is it between the two of you or does the rest of the board get involved?
Baroness Falkner: It depends on Marcial's judgment of the category of decision. If it is a decision, the board would obviously get involved. If it is for note, then the board may or may not be informed of the information. We have an hour between us on the CEO's report at every board meeting. Sometimes he will initiate the discussion in the CEO report, and we will have a discussion around that particular issue. The CEO report is a written report which comes to us and is sometimes between 30 and 50 pages long. I encourage him to make it shorter, but it is a comprehensive piece of work.
Q58 Chair: Are you and Marcial both satisfied that you are being adequately supported by the board?
Marcial Boo: Yes.
Baroness Falkner: I am exceptionally pleased with the composition of the board; it is a deeply intellectual, deeply expert board. We had a board effectiveness review last year, which we are bound to do every couple of years. One of the remarkable things they noted was that we had a higher level of board member engagement than they had seen on any other board, so almost no one misses any board meetings. They said that commissioners came to the board exceptionally well-informed, having thoroughly read papers, and the attendance level and engagement of board meetings was exceptionally high.
Q59 Chair: Are you prepared to share that board effectiveness review with us?
Baroness Falkner: No, it was commissioned for us. It is an internal document and I have a policy that stands—
Q60 Chair: You are satisfied with the board, and the board effectiveness review said that board members attended and contributed well. Are your staff satisfied with the performance of the board?
Baroness Falkner: The board effectiveness review interviewed all board members and lead staff in certain areas. They might have done the random sampling as well. Effectively, the message that we got out of the board effectiveness review in terms of staff was that, as an organisation, we needed to roll out impartiality training as staff were not quite there in understanding their role.
Q61 Chair: Have you rolled it out?
Baroness Falkner: We did that for all commissioners and staff in 2020 to 2021, which is why I wanted to discuss with you that we do extensive training across the board.
Q62 Chair: You rolled out impartiality training in 2021 because your board effectiveness review of which year told you that you needed it.
Baroness Falkner: No, our board effectiveness review told us subsequently that we still needed to do that, and it should be part of the induction pack for staff.
Chair: You rolled it out in 2001, but it was not effective a year later.
Baroness Falkner: I would not say it was not effective.
Chair: It needed redoing.
Baroness Falkner: If you were coming in as new staff and you had missed the training in 2021, the advice was that we should give it to all onboarding staff as part of their induction pack.
Q63 Chair: Marcial, Kishwer has not answered the question. Are your staff satisfied with the board?
Marcial Boo: A year ago, we had an in-person event at our headquarters in Manchester. Board members were present, staff were present, and it was a positive and motivational experience where people got to see each other. I mention that because of two factors that make it difficult for some staff to engage with the board.
One is that we have been through COVID and remote working, and we are all dispersed across four offices. The second one is—as is the case in every single public body—board members, non-executive members, come along for the meeting, engage, contribute and add value, and they are not in the office on a day-to-day basis, as all staff are. Visibility is inevitably lower, and these are some of the issues. We want to make sure staff have opportunities to see the board.
We had a board meeting recently in Glasgow where we enabled staff and board members to get together, and again that was a positive experience, and that is the kind of thing we are going to be doing more of.
Q64 Chair: I would like to state how important it is to answer questions accurately. I just want to put that on the record. I have asked a specific question about whether your staff are happy with the board; I do not feel that I have had an answer. Kishwer, perhaps you can try.
Baroness Falkner: Yes, I will try. I just wanted to correct something that Marcial said. Marcial, I should not put words into your mouth, but all staff are not in the office all the time. We are visible. There is an issue about visibility as there was a view among staff that we were not sufficiently visible.
The challenge is that when you are in there—as I was all day yesterday and there were four or perhaps five other staff in the office—you are not visible because we have large numbers of our staff who come into the office only on certain days of the week. We are trying to improve those figures through the people and workplace committee as we ourselves are trying to come into the office more.
Your question about whether we believe all staff are satisfied with the board is very difficult to answer for the simple reason that we have two entirely different functions. Staff are employees of the organisation, and they have different parameters for performance measurement. Commissioners are, in a way, non-executive. They are commissioners and have different roles to play, and engagement between staff and board is very variable. You have seen the figures.
For example, I do very little work with corporate services but the commissioner who does the people in workplace committee, or indeed other commissioners who help comms, do a lot more work with corporate services. I, for example, do much more work with policy strategy in legal, as does Alasdair Henderson, the deputy chair responsible who assists in this area. Our other deputy chair does corporate functions, people in workplace, and so on. We have different roles, and it depends on what area you are dealing with in terms of your visibility.
Q65 Chair: Please correct me if I am mistaken in what you said, but you said this was a difficult question to answer because of different roles and various reasons and staff might not see board members. Do you ask the question in your staff survey?
Baroness Falkner: About the visibility?
Chair: No, whether your staff are happy with the board, whether they are satisfied with their performance.
Baroness Falkner: I am not sure we do in that manner. There were some questions asked recently about the board, but we were not consulted on that. We want to engage to put in questions that will give us the answer in order for us to be able to come and speak to you about it next year.
Q66 Chair: Is the staff survey carried out by an external organisation?
Baroness Falkner: It is.
Q67 Chair: You do not dictate to them the questions?
Baroness Falkner: We should; you make a very valid point.
Q68 Chair: Do you know whether there is a question in that survey about how happy the staff are?
Baroness Falkner: I do not think we use that terminology.
Chair: Kim, your questions on disability.
Q69 Kim Johnson: Baroness, I have a couple of questions on disability and public sector equality duty. On 14 June, a disability transport consultant told the Transport Committee that they do not perceive the EHRC as a strong tool to enforce accessibility at the moment. Are you concerned that you are being perceived in this way, and do you think the EHRC has sufficient focus on disability as a protected characteristic?
Marcial Boo: On transport specifically, we have engaged with the Office of Rail and Road, with the Department for Transport, and with Network Rail and train-operating companies to improve accessibility at railway stations, and indeed across public transport. We have also engaged with the Civil Aviation Authority in respect of airports and airlines.
On transport, we are doing work through the regulatory bodies that are better placed in respect of rail and road and civil aviation to take action on those providers who do not provide access to their users, their passengers. For example, we have improved the lift access in Manchester station because there was a specific problem there.
More broadly, on disability, we have taken action in schools to improve the monitoring of restraint. The Government have responded very positively to that. We are ensuring new standards on special educational needs as well, and we have taken a legal case on recently for a child who was excluded from a nursery because of their autism. We are doing work in schools as well as in transport and a whole range of activity in the health sector.
We have published a report recently on social care decision making, which particularly impacts people with disabilities, and we are working very closely with the Department of Health and Social Care on building the right support package for people with autism and learning difficulties. We have intervened in Edenfield, which is a part of the Greater Manchester Mental Health Trust where there were allegations of mistreatment of people with learning difficulties and autism, and we have written to all integrated care trusts. That is just a flavour of some of the activity that we are taking on to support people with disabilities and making sure that we are acting on their behalf.
Melanie Field: The only thing I would add is some of the policy work we have been doing around the right to independent living for disabled people. We produced a legal model for incorporating that right into domestic law back in 2021, I think, as well as responding to the issues that disabled people are facing, we are seeking to push forward better protections for that right in the future.
Q70 Kim Johnson: What kind of relationship would you say you have with the likes of the DWP, particularly in rights for disabled people? I know the Committee has had some issues with the DWP in terms of waiting a long time for a particular piece of work.
Marcial Boo: We have ongoing dialogue with the DWP. We did some work with them back in 2020 specifically to support customers who are deaf or hard of hearing, and they have implemented a number of actions that we asked them to do back in 2020.
We are now engaging with them actively in respect of benefit claimants who have learning difficulties and those conversations are ongoing. We are in active conversation with that Department as we are—we have mentioned the Home Office already, the Department for Transport—across Government to make sure that they do their job effectively to protect people with disabilities and other protected characteristics.
Baroness Falkner: We continue to engage robustly with stakeholders from the disabled community. For the last six months, we have held three roundtables with disability stakeholders across the three nations we work in, and we will have a section on it in our statutory report which is going to be laid in Parliament in the next period.
Q71 Kim Johnson: I am aware that the UNCRPD says that there has been significant retrogression in many rights compared to 2017 though.
Baroness Falkner: We discussed that report with our stakeholders about how they might also help to contribute to the review, which is of course significant to us because we are a national human rights institution. We will continue to press for those rights as we should.
We are required to have a disability commissioner on our board because we took the decision, when we dismounted the advisory committee, that it was such a significant area, particularly in its relationship to the protected characteristic of age as well, that we needed to mainstream it across the commission, and we try to do that.
Q72 Kim Johnson: Going back to transport, you will be aware that there has been a proposal to close ticket offices at stations. I just wanted to know the role that the EHRC will take in terms of intervening to ensure that people with protected characteristics are not unfairly disadvantaged by the planned ticket office closures. What will the EHRC do to ensure travel is accessible for all, and are you concerned about the report that consultation documents are not accessible in all formats?
Marcial Boo: Yes, these are really serious concerns. We are looking at them and engaging with stakeholders to understand exactly what the nature of the issues are and the potential impacts on disabled people and indeed other rail users. There are complex economic and commercial issues that are leading to some of these decisions. We are focusing on our remit in respect of disabled people and engaging with the regulators as appropriate. We do not have some specific action that we are taking at the moment because we are currently assessing the nature of the issue and how best we could intervene, if we choose to do that, in an effective way.
Q73 Kim Johnson: How well-informed and how assured are you in terms of public sector organisations adhering to public sector equality duties, particularly in response to the BBC and their proposal again to cut local radio stations and the impact that this will have, particularly on the elderly, disabled and black communities? Are you assured that the BBC have undertaken their public sector equality duty? Have they completed an equality impact assessment in terms of how this will impact on those communities?
Marcial Boo: I can talk in general about our work on the public sector equality duty. Kishwer, did you want to come in on the specifics?
Baroness Falkner: Naturally, equality impact assessments are very valuable, but sometimes they become irrelevant if they are not going to tell you anything, and the more important thing is having due regard to the public sector equality duty.
Marcial Boo: In general, yes, we do check the way that public bodies are implementing their responsibilities through the public sector equality duty. There are tens of thousands of public bodies and so we have to rely on people doing the right things because they know they are the right things to do, but we need to ensure they know there is a watchdog checking to make sure that is the case.
Over the last few months, we have done some specific work with local authorities in England. We have examined, in detail, about 100 of them and their compliance with the public sector equality duty. We found some good practice, but we have also found some councils that do not really know about the public sector equality duty and how to apply it. We have written to 11 of them specifically asking them to take some detailed steps to improve the application of the Equality Act in the way they deliver local public services.
That is something that we want to spread to other councils, other local authorities across Britain, and then extend that kind of learning into other public bodies too. Whether it is the BBC or a local council, they all need to comply with the law, and they need to know that the public sector equality duty is there for them.
Q74 Kim Johnson: Particularly in terms of BBC, are you sure that they have complied with their public sector equality duty?
Marcial Boo: I do not have specific information about the BBC. Melanie, do you have any more information about that?
Melanie Field: No, I am afraid I do not.
Q75 Kim Johnson: I will go on to my next question then. Baroness, what is your assessment of the state of disability rights in Great Britain and what more does the Government need to do to ensure the rights set out in the UN convention on the rights of persons with disabilities are upheld?
Baroness Falkner: Marcial has gone through some of the work that we are doing. We also understand that the Government have to now conduct a consultation in terms of the National Disability Strategy and action plan. Would you like me to talk you through the various bits of work we are doing?
Kim Johnson: Have we got time to do that, Chair?
Chair: We have 17 minutes, and I still have two questions to ask.
Baroness Falkner: Melanie, can you deal with that quickly?
Melanie Field: We are disappointed that the National Disability Strategy has been held up and are looking forward to seeing what happens as a result of yesterday's Court of Appeal ruling. When we engaged in the development of the National Disability Strategy, we identified a number of areas where we felt that further action was needed; all those are still relevant: health inequalities for people with learning disabilities and autism, the employment of people with learning disabilities and autism.
We are engaging in the SEND review, which is going ahead. We also did an inquiry into the treatment of disabled people in the criminal justice system, and there were some improvements that we would like to see there. We also advocated for the principles of the UN convention on the rights of people with disabilities to be embedded throughout that strategy. We do see the need for a joined-up, cross-Government approach to these issues, which fall within the responsibilities of different Departments, and that is why that approach is really important to improve the economic and civic participation of disabled people.
Q76 Chair: Baroness Falkner, what assessment would you give of the state of the discourse on equalities in the UK today?
Baroness Falkner: I have been in this space now for about 15 years. The public are much more aware. Public awareness of rights, equality and non-discrimination rights is profound compared to where it was in 2003 and 2004.
Q77 Chair: Not awareness but discourse. How do you feel the public conversation is going around equalities?
Baroness Falkner: I have to confess that I avoid social media, so I would not be able to comment on the public discourse there, but I read the mainstream newspapers and I watch television. It seems to me there is greater coverage, people are more respectful of one another, and more respectful of one another in the knowledge of what the law is, perhaps not out of complete altruism, but because employers are more vigilant to call out bad practice, but people are more knowledgeable.
Overall, if I was a young person working in a workplace today, as a woman of colour, a migrant to this country, a woman of a different religion, I would be far more content with the treatment I would receive in the United Kingdom than I was in 1976 when I arrived and the immediate discrimination that I faced, given that I came from a certain part of the world which was not well regarded.
Q78 Chair: That is a really interesting comparison which you are undoubtedly right to make. I look at things like the Casey review that found institutional misogyny, homophobia, and racism in the Metropolitan police and worry that we have not come far enough. Do you see the EHRC having a role in making that better, improving it further, and what are you doing to further that?
Baroness Falkner: Indeed, actually, we are very concerned about that. We have set aside a small proportion of our resources to look at uniformed services and what happens there, including the Ministry of Defence and fire services as well as other areas. Baroness Casey is doing an extraordinary piece of work. If only we had more bandwidth as it all comes back to that, but there is a lot of work to be done.
Madam Chair, I wonder if you have identified a really important thing, which is the question that we are constantly looking at when we look at data: does awareness increase reporting? Is it a function of reporting or is it a function of the problem increasing? It is quite important to look at it from that perspective.
Q79 Chair: Marcial, I am going to take you back very deliberately to your commentary around there being no standout reason why people leave the EHRC, the fairly dismissive response that we got back in November last year and that we have had again today, that this is the great resignation. I will give you one last chance; is there one standout reason that you are aware of from your own staff—not the great resignation, not promotion, not more money—as to why they leave?
Marcial Boo: I am sorry if the answer I gave did not satisfy the Committee, but it is the case that in the exit interviews, the most important reason people say they are leaving the organisation is for pay and progression in terms of their careers.
Q80 Chair: It would be wrong to suggest that it is in any way because they feel the EHRC no longer shares their values?
Marcial Boo: People leave organisations for all kinds of reasons and there may be some people who leave the organisations because they want to work in a campaigning organisation, or they want to work in central government. That might align better with what they want to do with their careers and that is great, but the biggest reason that people tell us for leaving is because they want pay progression and career progression.
Q81 Chair: The staff survey indicates that they believe the EHRC shares their values?
Marcial Boo: As I have said, the staff survey presents a mixed picture, and I know that staff in the organisation are proud to work for Britain's equality regulator where we are taking action every month to protect people’s rights, as we have reported to this Committee today.
Q82 Chair: Baroness Falkner, are there any other major concerns you have that we have not already raised today that you think this Committee should be aware of, given our role to scrutinise you?
Baroness Falkner: My greatest concern is how we can foster better relations between people who share protected characteristics. You asked about the discourse, and there is a reason that I do not look at social media; it is simply too distressing. I am sure there are many, many other people in the world who are similar to me. In a mature democracy, there should be the space for people to disagree well, and that is an overriding concern. As human beings, we spend a third of our lives in the workplace; that plays through to workplaces.
One of the things people say to me from across society is that the workplace has become more stressful for them, and we know the level of mental illness and so on is on the rise; we know it affects young people more. It is profoundly worrying that we cannot disagree better, that people feel that their freedom of expression is curtailed or respected, or that others have too much freedom of expression to say the kind of things that they feel they can say. I do not know how we will arrive at a good landing place on this.
Chair: Perhaps that will be next time.
Q83 Lia Nici: A very quick question to pick up on what you have been alluding to, Chair. Does the board think there might be a mismatch between the reason people apply for jobs in the EHRC because there is not proper communication about the importance of impartiality versus activism?
Baroness Falkner: One of the things we have found in our analysis is that the organisation has changed. The previous organisation was described somewhere as a rubberstamp, whereas now it takes decisions in line with its statutory obligations. It could be that activist staff, who think that working for us will be like living their values, and values come from all nine protected characteristics, will be able to live their values, bring their whole self to work, as it is referred to, in doing a professional job at EHRC; that may not be where they find themselves. It is something we think about.
I do virtual staff meetings because our staff are dispersed across four geographical locations. We get between 170 and 200 staff. They ask me very direct questions, and I try and answer them directly as I think it is so important. It is not a matter of visibility; it is a matter of communicating that we are all in a joint endeavour to serve the public interest. It is what makes me get up in the morning, and I am convinced it is what makes most of our staff get up in the morning and come into work, and that is what we should be there to do.
Chair: Can I thank all the witnesses for their evidence? If there is anything you feel you wish to add or correct, please do feel free to contact us.