Written evidence from the Equality and Human Rights Commission (RHR0023)

 

 

Introduction

  1. The Equality and Human Rights Commission (‘the Commission’) is Britain's National Equality Body and an 'A' status National Human Rights Institution (NHRI), recognised and accredited by the United Nations (UN). We have a wide statutory remit and powers to challenge discrimination, promote equality of opportunity and promote and protect human rights for everyone.
  2. This submission supplements oral evidence provided on 20 July 2020 by David Isaac, then Chair, and Rebecca Hilsenrath, Chief Executive, concerning the work of the Commission to promote racial equality.  It provides information about our role and approach to fulfilling our statutory mandate, and our specific approach to promoting racial equality and human rights for ethnic minorities, together with an overview of our recent work and impact and forward looking programme of work on race and ethnicity.

A. Our role and approach

  1. We bring all our powers and levers to bear on equality and human rights problems through integrated strategies to achieve measurable impact. We carry out research, monitor the extent to which equality and human rights obligations are being met and influence law and policy; we promote better compliance with the law and seek to improve practice through guidance and inquiries; and we use our strategic enforcement powers when the law is breached.
  2. We focus on how we can achieve improvements to law, policy and practice by using all the levers at our disposal. It is the breadth of our statutory powers that makes us uniquely placed to achieve impact by deploying our various powers in a complementary way. Our compliance, litigation and enforcement activity consists of a spectrum of activities aimed at driving improved compliance with the law, from providing information and advice to undertaking litigation and enforcement action using formal enforcement powers.
  3. The breadth of our remit, spanning both human rights and equality and covering all groups sharing protected characteristics under the Equality Act 2010, allows us to address problems as they are experienced by people in real life: in multifaceted and intersecting ways. The breadth of our remit also enables us to work strategically to address structural issues related to the promotion and protection of equality and human rights.
  4. Whilst the breadth of our powers and remit is a key strength, it also means there is a wide range of issues we could work on. We have been consistently told by our stakeholders, as well as the recent Tailored Review of the Commission, that they want us to concentrate on a smaller number of issues over the longer term to ensure we have the greatest impact and that they are clear on where our priorities lie. The significant reduction in our resources since 2010 has, meanwhile, made this prioritisation more pressing.
  5. Under our 2019-22 strategic plan[1] we have prioritised a smaller number of Priority Aims to enable us to take targeted action for impact. Our priorities are based on evidence of the state of equality and human rights across Britain in our ‘Is Britain Fairer?’ statutory report, together with stakeholder intelligence and consultation. We have focussed on issues that can be addressed through a combination of our powers, including our enforcement and litigation powers. This approach allows us to take a deep look at each issue and devote more resources to addressing specific problems over the medium to long-term.
  6. Our current strategic priorities include one overarching ‘core’ aim of upholding and strengthening equality and human rights laws. This is complemented by five priority aims concerning specific areas of life: 1) People in Britain have equal access to the labour market and are treated fairly at work; 2) Public transport supports the economic and social inclusion of disabled people and older people; 3) People can access redress when they are wronged and have a fair trial in the criminal justice system; 4) The education system promotes good relations with others and respect for equality and human rights; and 5) Rules and practice governing entry into, exit from and treatment in institutions respect equality and human rights standards.
  7. Work on all protected characteristics, including on race, is embedded throughout these aims. We carefully consider the most pressing issues faced by groups of people sharing specific protected characteristics, as well as compound problems faced by people sharing multiple protected characteristics, when agreeing our strategic and business plan priorities.
  8. We have a network of expert protected characteristic leads, including three focused on racial equality, who provide advice across all our work and plans to ensure they are informed by emerging evidence and stakeholder intelligence. We currently or have recently engaged with over 1,000 individuals or organisations with expertise on issues impacting particular protected characteristic groups, and we maintain ongoing dialogue with key racial equality partners. This engagement constantly informs and refines our work.

B. Our recent work to promote racial equality

  1. Our work on racial equality exemplifies the way in which we use the full range of our powers and activities in an integrated and strategic way to bring about change. We are proud of the work we have done to promote racial equality to date and have made important advances; however, we also recognise that there are long-standing racial inequalities to be addressed and that there is a need for more concerted action by us and others. Some examples of activities and impact from the last couple of years are included below.

Evidence

  1. Under our core aim, on the equality and human rights legal framework, we have built a robust evidence base to influence policy and inform our strategic priorities. Our flagship statutory publication, Is Britain Fairer?, published and laid before Parliament every three years, is the most comprehensive review of how Britain is performing on equality and human rights. It uses our Measurement Framework[2] to examine progress on equality and human rights across all areas of life. Is Britain Fairer? 2018[3] and our earlier report, Healing a divided Britain[4] showed that deep rooted race inequalities persist across many areas of life, including:
  1. Our Is Britain Fairer? report provides a foundation of evidence on which governments and other public bodies, parliaments and policy-makers working in a range of sectors can make informed decisions in relation to equality and human rights, and identify the most persistent and prevalent inequalities, including race inequalities.
  2. In October 2020 we will publish an interim report, using our Is Britain Fairer?’ methodology, that will bring together the currently available evidence on the equality and human rights impact of the coronavirus pandemic, looking across all protected characteristics. The report will have a particular focus on work, poverty, education, social care and the criminal justice system and we will use it to advise on and challenge strategic decision making by governments and public authorities as they plan through and beyond the coronavirus pandemic.

Inquiry powers

  1. Also contributing to our evidence base, under our education aim, we conducted an inquiry into racial harassment in publicly funded universities in England, Scotland and Wales using our powers under section 16 of the Equality Act 2016.[5] Our engagement and recommendations resulted in the then Universities Minister committing to monitor the effectiveness of the Office for Student’s regulatory powers in England in relation to racial harassment, and setting out how he will monitor progress. He has written to all university governing bodies on this issue.[6]
  2. Universities UK has since formed a taskforce looking at racial harassment experienced by both staff and students. It is developing new guidance for the sector and making recommendations to address the challenges in this area.[7] The Office for Students has also set out its expectations of universities and colleges and how it will regulate racial harassment affecting students in higher education.[8] Also building on the findings of our inquiry, we worked with the British Medical Association to support the development of a Charter and guidance[9] for Medical Schools to prevent and address racial harassment.
  3. In addition to our own inquiry powers, we have sought to influence other inquiries. For example, in March 2019 we published a report presenting the lived experience of people who were affected by the fire at Grenfell Tower[10] and made detailed legal submissions to the Grenfell Tower Inquiry.[11] This included looking at how relevant authorities showed they have due regard to the need to advance equality and prevent discrimination, particularly with regard to race, ethnicity and immigration status for families of the bereaved.

Influencing law and policy

  1. In 2017 we published our ‘Roadmap to race equality’[12] following the publication of the Government’s Race Disparity Audit, that exposed stark disparities across many areas of life. We emphasised that concerted action is needed to address entrenched and interlinked racial inequality across Britain. We made specific recommendations across the priority areas of employment, education, housing, health, criminal justice, and called for a comprehensive, coordinated and long-term government race equality strategy based on these.  Our Roadmap and engagement with Government was a major contributing factor to the establishment of the Race Disparity Unit (RDU) in the Cabinet Office, which has subsequently applied the methodology of our Measurement Framework[13] in its work. 
  2. We have worked closely with the RDU to improve the availability of data and understanding of race inequalities across all areas of life, including during the pandemic. The RDU is playing a vital role in supporting an understanding of the disparities. Yet as the Committee has highlighted, many of our Roadmap recommendations, and the recommendations of other independent expert reviews Commissioned by Government, including the Lammy,[14] McGregor-Smith,[15] Angiolini[16] and Williams’[17] reviews, remain unimplemented.
  3. We use all the levers at our disposal to influence Government implementation of these and other domestic and international human rights commitments. In addition to close engagement with Government departments on these matters we provide regular advice to Parliamentarians, including through evidence to select committees, and monitor and report to the UN on the UK’s progress against commitments made under the UN International Convention on the Elimination of All Forms of Racial Discrimination (CERD). We provide advice and support to civil society organisations to report to these mechanisms. Advising and supporting others to scrutinise progress in this way allows us to maximise influence and impact.
  4. We consider a key gap that undermines implementation is the lack of a comprehensive Government race equality strategy. We are working with race stakeholders to update our Roadmap in light of the pandemic and reiterate our central call for Government to set a comprehensive, coordinated and long-term race equality strategy led a single department, preferably the Cabinet Office, to drive action across Government, coordinating effectively with the devolved administrations in Scotland and Wales as appropriate. We have recommended that such a strategy should be adequately resourced with clear targets and timescales as well as clear governance and accountability structures.

 

 

Litigation and enforcement

  1. Of the legal cases we have closed over the last three years, almost one in five cases either wholly or partly addressed issues of race.[18] Some examples of our recent activity in 2019-20 are provided below.
  2. Challenging discriminatory adoption practices[19]: We funded the case of Mander v Royal Borough of Windsor and Maidenhead brought by a British couple of Sikh Indian heritage who were told in 2016 that although they would be suitable adoptive parents, they could not make an application because white couples would be given priority as only white children were available. The judge ruled in favour of their claim, meaning that other ethnic minority British couples will be protected from discrimination during the adoption process. The children’s minister subsequently wrote to Directors of Children’s Services to say that they shouldn’t turn away prospective adopters on grounds of ethnicity or other protected characteristics.[20]
  3. Right to rent: we intervened in the case of Joint Council for the Welfare of Immigrants (JCWI) v Secretary of State for the Home Department on the lawfulness of the right to rent scheme. Under the scheme, landlords of properties throughout England are required to check that someone has a ‘right to rent’ before letting them a property. Landlords can face criminal penalties if they fail to do this.  JCWI’s evidence shows that landlords discriminate against people from ethnic minority communities, preferring to rent to people who ‘look and sound British’.  We intervened in the Administrative Court and Court of Appeal where it was argued that the rules for landlords are not clear enough to prevent race discrimination.  Although JCWI’s claim succeeded in the Administrative Court it failed in the Court of Appeal and is now being taken to the Supreme Court.
  4. Rental property: we secured an injunction against landlord Fergus Wilson[21] who is a buy-to-let investor and landlord with a large portfolio of properties in Kent. We were alerted to Mr Wilson’s attempts to restrict the letting of his properties on racial grounds. We wrote to Mr Wilson, highlighting the discriminatory nature of this policy and calling on him to retract it. When he refused, we used our powers to apply to court for an injunction to prevent someone becoming victim of direct discrimination. His policy was found to be unlawful and we promoted the outcome to ensure others in the rental sector are aware of the court’s findings.
  5. Afro and braided hair: This year, we supported Ruby Williams in the case W v School. Ruby, who was 14 at the time and preparing for her GCSEs, was repeatedly sent home from school because of her afro hair. She was told her natural hair was against the school’s uniform policy, distracted other pupils and blocked their view of whiteboards. Ruby became anxious about going to school and was worried about being singled out by teachers in front of her classmates. Although the school did not accept liability, Ruby received £8,500 in an out-of-court settlement after we funded a race discrimination claim on her behalf.[22] The school agreed to sign an agreement under Section 23 of the Equality Act 2006 and implement a new hair style policy which took account of protected characteristics such as race when deciding if hairstyles were acceptable.
  6. We also launched a major investigation into allegations of antisemitism in the Labour Party in 2019 and will be publishing the findings shortly. 

C. Our race programme for 2020-21

  1. Public concern about the disproportionate mortality rate experienced by ethnic minorities during the coronavirus pandemic together with the scale of the Black Lives Matter protests following the killing of George Floyd in the US have brought long-standing race inequalities to the forefront of the public agenda. In light of this, and the opportunity it affords to gain traction and drive real progress on racial equality in the immediate future, we have launched a dedicated race programme. Our race programme builds on and brings together our existing work to advance racial equality into a single coherent programme, supported by additional resources and the focussed use of our unique statutory powers. 
  2. Our race programme aims to ensure that longstanding and structural race inequalities are addressed. We will seek to achieve this aim through a strategy that works towards four key changes:
  1. Working across England, Scotland and Wales, we are drawing on our powers under the Equality Act 2006 throughout the delivery of the programme, including our power under section 16 to conduct inquiries, and our power under section 31 to assess compliance with the Public Sector Equality Duty (PSED). We will combine this with evidence-based policy influencing and work to ensure there is compliance with equality and human rights law. We will use our unique expertise on the domestic and international human rights framework and engagement with the UN to bring pressure to bear on governments and other decision-makers to take urgent, effective and coordinated action.
  2. In order to tackle prejudice, we will seek to develop a unifying approach to inclusive freedom of expression so that often divisive debate in Britain’s national life instead promotes mutual understanding whilst challenging prejudiced attitudes. We have a distinct role in leading and challenging debates on the kind of society we want to live in, as Britain’s national equality body, through clarifying the law, facilitating tolerance in debate, and convening discussions amongst interested parties.
  3. We will hold governments and public bodies to account on commitments and action taken to address racial inequalities and promote the human rights of ethnic minorities. To support this, we have developed proposals to strengthen the specific duties underpinning the PSED that would require public authorities to set, publish and pursue equality objectives focussing on the most significant inequalities relevant to their functions and the people interacting with them. This would require public bodies to use the PSED strategically to address the most pressing race inequalities across Great Britain. We will use our next ‘Is Britain Fairer?’ report, presented to Parliament, to report on the long term effects of the pandemic and to track whether progress has been made on racial equality. We will ensure international accountability through our reports to the UN on the UK Government’s progress against commitments made under the UN Convention on the Elimination of Racial Discrimination (CERD).
  4. We also want duty bearers, such as employers and service providers, to play their part in removing barriers to life chances being fulfilled. We will soon launch an inquiry under section 16 of the Equality Act 2006 to look at the experiences of ethnic minority workers across Britain (predominantly focussing on the health and adult social care sectors). Our focus will be on the lowest paid, including those in insecure or precarious roles. This inquiry will contribute to the evidence base on the reasons behind the disproportionate infection rates and deaths of certain ethnic minorities from coronavirus. We will also redouble our efforts to engage Government on the introduction and implementation of monitoring and reporting on the recruitment, retention and progression of ethnic minority groups, and on our calls for mandatory action planning for employers to address the factors contributing to ethnicity employment and pay gaps. In addition, we are engaging with Ofqual to ensure that, should it be necessary to cancel exams again in future, any new systems for issuing grades do not put ethnic minority pupils at a disadvantage.
  5. In order to ensure that rights are protected in law and in practice, particularly for people with no recourse to public funds or with insecure immigration status, we are assessing under section 31 of the Equality Act 2006 how and whether the Home Office complied with its PSED obligations when implementing the ‘hostile environment’ immigration measures, which had a serious and damaging effect on many members of the group known as the ‘Windrush’ generation and their descendants. We have developed rigorous recommendations based on our assessment and are in discussions with the Home Office over their potential inclusion in the department’s formal response to the Williams Lessons Learned Review. We will publish our full findings in October 2020.
  6. Alongside our new race programme we will continue to integrate consideration of human rights problems and inequalities faced by ethnic minorities across our strategic aims, with consideration of issues faced by people who share multiple protected characteristics. Under our access to justice aim, this includes our close engagement on the Domestic Abuse Bill and our proposed amendments to address protection and support gaps for ethnic minority women. We have developed proposals with stakeholders to ensure the availability of sufficient specialist services for ethnic minority survivors, and to ensure support and protection irrespective of immigration status.

D. Our powers, resources and independence

  1. During the oral evidence session on 20 July the Committee asked whether the Commission has the necessary duties, powers and structures to act as an effective enforcer for Black people’s human rights.
  2. As outlined by David Isaac and Rebecca Hilsenrath in oral evidence and throughout this submission, we are proud of the progress and impact we have made to promote racial equality and address human rights problems faced by ethnic minorities. We operate as a strategic regulator, as Parliament intended. We consider the breadth of our remit and powers to be a key strength enabling us to address real life problems. Yet limitations on our powers and resources do limit the work we are able to do.
  3. One key outstanding issue is that the Commission’s equality and human rights enforcement powers are asymmetrical. While we can provide legal assistance to individuals in Equality Act 2010 proceedings[23], we cannot do so in human rights cases unless the claimant is also complaining of a breach of the Equality Act 2010. There have been several instances where we have been unable to provide financial support for a meritorious and potentially strategic case because of this limitation on the cases we can fund. Similarly, although we have the power to undertake an investigation where we suspect an organisation has committed an unlawful act under the Equality Act 2010, this power does not extend to human rights breaches. The lack of an investigation power limits the Commission’s ability to tackle suspected breaches of human rights law.
  4. We welcomed this Committee’s 2018 recommendation that Government harmonise the Commission’s enforcement powers in line with its powers in relation to equality, so that it can undertake investigations into named bodies for possible breaches of the Human Rights Act and provide legal assistance to individuals in Human Rights Act cases.[24]
  5. A further limitation to our power to undertake an investigation is that we cannot compel the disclosure of evidence without first triggering the formal process, with all the cost and risk that entails. The power to compel the disclosure of evidence before triggering the formal investigation process would significantly improve our enforcement options as it would enable us to issue an unlawful act notice or apply for an injunction or interdict in cases where a full-blown investigation would be disproportionate, or to establish whether an investigation is merited.[25]
  6. In recent years we have significantly increased our compliance, litigation and enforcement activity. [26] We have placed use of these powers at the forefront of our 2019-22 strategic plan and this is reflected in our published Litigation and Enforcement Policy 2019-22.  Last year we initiated three inquiries and two major investigations, as well as a number of smaller investigations, a record for the Commission. In 2019, to support this work, we established a new dedicated enforcement team to support our litigation and enforcement policy. We also established a dedicated compliance team whose role includes ensuring that important court judgments are followed up with communication to relevant organisations to help ensure they meet the requirements of the law.
  7. We have achieved these advances in the context of a significantly reduced budget. Our budget has declined by some 70% since 2010. We could of course do more with an increased budget. Rebecca Hilsenrath gave an example during oral evidence of work we have done to date under our ‘legal support projects’, which help individuals with discrimination cases using our funding power under section 28 of the Equality Act 2006.[27] However, we cannot support every individual discrimination case, and wide ranging legal support projects that focus on taking a significant number of cases in a specific area to make duty bearers more aware of their legal obligations and the risks of non-compliance become more difficult to sustain in the face of increasing financial constraints.
  8. We are keen to ensure our budget is protected and not further reduced through the current Government spending review, to allow for the delivery of our ambitious, enforcement-led strategic plan. Set against this context, it is likely that our approach going forward will need to focus more on targeted enforcement action, as opposed to supporting wide-ranging litigation, in order to ensure duty bearers feel they are operating in a regulated space.
  9. Government restrictions on how we allocate our budget also constrain our operations. Current classifications of administration and programme funding do not adequately reflect the nature of our work and can restrict financial planning and limit our ability to work in an agile and responsive way. These classifications, and government decisions about the amount of each type of funding, could risk unduly influencing the types of interventions the Commission can make. Additionally, the Government’s role in the appointment of the Chair and Commissioners risk undermining our independence.
  10. The Global Alliance of National Human Rights Institutions (GANHRI) Sub-Committee on Accreditation (SCA) is due to review our A-status accreditation as an NHRI.[28] The SCA has previously made recommendations on improving our independence in relation to how our budget is set, the appointments process for Commissioners, and reporting directly to Parliament.[29] We consider these recommendations would improve our independence and in particular, we consider:

 

22/09/2020

 

 

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[1] EHRC (2019), ‘Strategic Plan 2019 to 2022’.

[2] EHRC (2017), ‘Measurement framework for equality and human rights’.

[3] EHRC (2018), ‘Is Britain Fairer? The state of equality and human rights 2018’.

[4] EHRC (2016), ‘Healing a Divided Britain’.

[5] EHRC (2019), ‘Tackling racial harassment: universities challenged’.

[6] The then Universities Minister, Chris Skidmore MP, set out these commitments in a letter to the Commission following the launch of our inquiry. See: EHRC, ‘Impact Report 2019-20’.

[7] Universities UK (2019), ‘Universities UK pledges new support for universities to take urgent action on tackling racial harassment’. 

[8] Office for Students (2020), ‘OfS consultation on harassment and sexual misconduct in higher education’.

[9] BMA (2020), ‘A charter for medical schools to prevent and address racial harassment’.

[10] EHRC (2019), ‘Following Grenfell: Grenfell residents’ access to public services and support. Race on the Agenda (ROTA) was commissioned to conduct the research fieldwork.

[11] EHRC (2019), ‘Summary of submissions following Phase 1 of the Grenfell Tower inquiry’.

[12] EHRC (2017), ‘A roadmap to race equality’.

[13] EHRC (2017), ‘Measurement framework for equality and human rights’.

[14] Lammy, D. (2017), ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System’.

[15] McGregor Smith, R. (2017), ‘Race in the workplace: The McGregor-Smith review’.

[16] Angiolini (2017), ‘Report of the Independent Review of Deaths and Serious Incidents in Police Custody’.

[17] Williams, W (2020), ‘Windrush Lessons Learned Review: independent review by Wendy Williams.

[18] This is based on data for cases we were involved in that closed between April 2017 and July 2020, and includes cases where race has been flagged as a relevant protected characteristic. The figure is over one in four if we include cases that had a potential relevance across all protected characteristics (for example, we were involved in a case challenging tribunal fees that had a positive impact across all discrimination claims.

[19] EHRC (2019), ‘Manders win race adoption case’.

[20] Department for Education (2020), ‘Letter from Michalle Donelan MP, Parliamentary Under-Secretary for Children and Families, to Director of Children’s Services’.

[21] EHRC (2017), ‘Landlord's policy banning Indian and Pakistani tenants is unlawful, says County Court’.

[22] EHRC (2020), ‘Impact 2019-20’.

[23] Equality Act 2006, section 28.

[24] House of Commons and House of Lords Joint Committee on Human Rights (2018), Tenth report of session 2017-19: ‘Enforcing Human Rights’

[25] We submitted evidence to the Joint Committee on Human Rights in 2018 on this issue, alongside our specific concerns about limitations on our powers in relation to human rights matters under section 20 and 28 of the Equality Act 2006. See: Joint Committee on Human Rights, Enforcing Human Rights inquiry, “Equality and Human Rights Commission - written evidence”, 11 July 2018. 

[26] In 2019/20, we used our litigation and enforcement powers in 79 cases including section 28 legal assistance cases, interventions, judicial reviews, agreements, investigations and injunctions. This was a 64% increase on the use of litigation and enforcement powers in 2014/5.

[27] For example, in 2019/20 we ran a legal support project for disability discrimination claims against transport operators, supporting 22 cases. See: EHRC (2020), ‘Impact Report 2019-20’. 

[28] GANHRI’s Sub-Committee on Accreditation was due to consider reaccreditation of the Commission in October 2020. All sessions have been cancelled for 2020 due to the coronavirus pandemic and new dates are yet to be confirmed.

[29] International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, Report and Recommendations of the Session of the Sub-Committee on Accreditation (SCA), 16-20 November 2015.

[30] The Commission has a unique role compared to most other UK regulators in that we scrutinise and regulate Government activity. We consider this should be reflected in the appointments process. Provisions of the Budget Responsibility and National Audit Act 2011 concerning the National Audit Office (NAO) provide a helpful comparative model. The NAO Chair is appointed by the Queen on recommendation of the Prime Minister and with the agreement of the Chair of the Public Accounts Committee. The other non-executive members are appointed by the Public Accounts Commission.

[31] In 2015 the SCA recommended: “Government funding should be allocated to a separate budget line applicable only to the NHRI. Such funding should be regularly released and in a manner that does not impact adversely on its functions, day-to-day management and retention of staff”. See: International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, Report and Recommendations of the Session of the Sub-Committee on Accreditation (SCA), 16-20 November 2015.

[32] We note that the latest Tailored Review of the Commission recommended that “the EHRC and GEO should work together to set out a case for a new budget settlement, based on priorities the EHRC sets, effectiveness and impact, with the EHRC’s budget reviewed as a standalone line of expenditure. In doing so, a new case should be made for the split between programme and administration classification”. See: Government Equalities Office (November 2018), ‘Tailored Review of The Equality and Human Rights Commission’.