Issue 34 October 2006 - The Commission for Equality and Human Rights, Part II
This article is continued from Part I which appeared in Issue 33 - link
How Will the Commission Work?
A new vision requires new ways of working that are flexible and proportionate. They need to be able to address the complex problems of discrimination and disadvantage that we face today.
The new Commission will be an independent influential champion whose purpose is toreduce inequality, eliminate discrimination, strengthen good relations between people and protect human rights. The CEHR will take an active role in helping to achieve change to benefit some of the most vulnerable and least well represented people in our society.
But real social change comes when we find new ways of working together, new alliances, new understandings.
The Commission will seek to work in partnership with a range of groups and organisations; large and small employers, and public authorities such as in health care, schools, colleges and universities, or local, Scottish and UK Governments and Parliament. It will also work closely with partners in the voluntary sector that share similar goals to the CEHR, seeking to maximise its impact at the grass-roots level.
The CEHR will have reference to the specific equality and human rights duties contained in the Scotland Act 1998 and will be able to advise the Scottish Parliament and Executive on those duties. It will require engag1ng with them on equality and diversity issues relating to devolved issues, when it is dealing with such issues across Britain.
What About Specific Issues?
Fair minded people want equality, but not all challenges are the same. There are real fears that particular discrimination faced by specific groups will not get the attention they deserve under the new arrangements and some groups have voiced fears that they wil lose out.
However, working together on common challenges does not mean there will be no specific programmes of work for each group covered by the Commission. Indeed, the strateg1c plan will have to set out the Commissions' programmes and plans that address race, gender, disability, sexual orientation, age, religion or belief, and Human Rights. A common legal framework that will be created by a Single Equality Act, will make this simpler and easier to deliver. Black and minority ethnic communities have expressed a concern that the work undertaken by local organisations, such as the Race Equality Councils (RECs"), will disappear. The government has g1ven a guarantee that funding for the RECs will continue for the foreseeable future and a successful regional presence will support and continue the work of RECs, other local equality groups (including work on disability and gender), as well as include the newer areas that now fall within the remit of the CEHR.
Who Will Run the CEHR ?
There will be up to 15 Commissioners including a Chair, a Commissioner for Scotland and a Commissioner for Wales. The Commissioner for Scotland will be required to have specific knowledge of Scotland and Scottish issues and institutions. Other Commissioners may also be Scottish or living in Scotland. There will also be a requirement for one Commissioner to be a disabled person and it has already been agreed that a committee will be set up to focus on the needs of disabled people. This reflects inherited requirements in the Disability Rights Commission Act that ensures disabled people steer the work of the Disability Rights Commission.
The Commissioner appointments will be made on the basis of experience or knowledge about the functions of the Commission-such as business, the public sector, or the trade union movement-as well as about the specific areas of discrimination and human rights for which the Commission will have responsibility. A diverse composition is therefore effectively ensured by statute.
The Commissioners will form the board of the CEHR. It is anticipated that the board will be fully appointed by the beginning of October. The new CEHR board will then decide on options for strategic direction, organisational design and key policy issues.
The new Commission will also have the power to appoint advisory committees or committees with delegated powers on any issue or with respect to any community or group, in addition to the statutory committees on Scotland, Wales and disability. Which committees are established will be decisions for the Commission itself, but e.g. the government believes there are strong arguments for establishing a race equality committee and ensuring proper consultation with race equality groups and Black and minority Ethnic communities.
What Does this Mean for Legal Professionals?
The creation of the CEHR has a range of implications for legal professionals in Scotland. It will provide a one-stop shop for individuals, organisations and businesses seeking advice and information on equality and human rights issues. Not only will legal professionals be able to access up-to-date advice and information but clients will also be able to access this information.
The CEHR will be working in partnership to deliver its services, so its transfer of expertise programme will play a key part in ensuring that its partners will have the knowledge and skills to deliver those services. This is a key opportunity for legal professionals already working in equality and human rights to build an important relationship with the CEHR, or for those with an interest to gain better knowledge and insight into equality and human rights issues.
The Equality Act 2006 also provides that the CEHR can make a third party intervention in specific cases1, including in Scotland. Lawyers should be prepared for this to happen, and indeed could use this as an opportunity to gain vital expertise by highlighting to the CEHR cases which might merit an intervention. This new power will see a substantial change in Scottish legal procedure where there is little history of third party interventions.
A key consideration which may be of interest to firms is the suggestion that the CEHR has a business support unit. Learning from the experiences of the existing Equality Commissions, and from talking to stakeholders, it has become apparent that business
often feels disengaged and unsupported on equality and human rights issues. To redress this fact the CEHR is considering including a business support unit as part of its structure-this could benefit legal professionals in ensuring that their own working practices promote equality and human rights and comply with their legal obligations, as well as supporting them to ensure that clients meet their legal obligations.
Relationship with the Scottish Commission for Human Rights
In Scotland there will also be a Scottish Commission for Human Rights ("SCHR"). The Bill creating this body is currently going through the Scottish Parliament. It passed Stage One in May 2006 and it will be considered at Stage Two in the early autumn.
The relationship between the SCHR and the CEHR will be vital to the protection of human rights in Scotland. Given that there will be two bodies operating in Scotland-both on human rights issues the potential for confusion of the public is high. In practice the SCHR will operate on devolved issues and the CEHR will operate on reserved issues and they will work closely together. However, the definition of devolved and reserved has often been problematic. One needs only to look at the work of the Scottish Commissioner for Children and Young People to see the dichotomy2. This is one area that the two commissions will consider very closely when creating tl1e Memorandum of Understanding, which will outline how they will work together.
The New Equality Duties
The Equality Act 2006 also introduces new duties, which will also be overseen by the CEHR. These include provisions prohibiting discrimination on grounds of religion or belief in the provision of goods, facilities and services. There are also provisions providing for a similar obligation on grounds of sexual orientation to be brought forward by way of regulations introduced by the Secretary of State. The Equality Act also introduces the new Public Sector Duty on gender discrimination. This provides that:
"a public authority shall in carrying out its functions have due regard to the need-
(a) to eliminate unlawful discrimination and harassment, and
(b) to promote equality of opportunity between men and women.[3]
This range of measures is designed to further promote equality in the UK.
What Happens Now?
The work on the Equalities Review and the Discrimination Law Review is ongoing, and when complete, will provide a better picture of the causes of discrimination in Britain and legislation with which to tackle them. Meanwhile, the introduction of the Equality Act and the creation of me CEHR is progress towards making Britain a more equal society in which to live and work. Throughout the whole process of setting up the CEHR the voice of equality and human rights' stakeholders, businesses and trade unions in Scotland, England and Wales has been vital.
The CEHR Transition Team has now held three stakeholder meetings in Glasgow, Dundee and Inverness and a policy conference in Edinburgh. These meetings and conference have provided suggestions on potential policy issues, including local issues, for the CEHR as well as potential ways of working and partners for the CEHR to work with. Supplementing this work is the project mapping the provision of equality, diversity and human rights advice services across Scotland. This project is also mapping local demographics, and local policy issues.
In addition to this, members of the Transition Team and the Equalities :Minister, Meg Munn, have been meeting with stakeholders, including a range of race equality groups through hosting a lunch at GARA, speaking at the CEMVO Black Leadership Network meeting, and speaking at a GARA lunchtime seminar. This information has been brought together to create a draft report on policy issues for the CEHR.
Meanwhile, work on the organisational design has commenced, with independent consultants, Ernst and Young ("E&Y"), being appointed to carry out this extensive project. Their work will consider existing organisational structures across Britain-looking at not only the existing equality commissions but also other potential models. E& Y will produce options for the CEHR board to consider once it is appointed, hopefully by early November. Interviews for the Chair position have taken place and interviews for the Commissioners, including the Scotland Commissioner, will take place soon.
The second edition of the CEHR Transition Team newsletter will shortly be available. If you haven't already signed-up for a copy you can do so at www.cehr.org.uk.
Setting up a new Commission with a powerful vision to deliver, working in new ways, with new and enhanced powers and duties to exercise is an ambitious project and will not always be easy; however the gains for individuals, organisations and society as a whole make it a target well worth achieving.
References
[1] Equality Act 2006, s.30(1)
[2] The Scottish Commissioner for Children and Young People's remit extends to the UN Convention on the Rights of the Child. She took action regarding the detention of children of asylum seeking parents and was told this was ultra vires as her remit was devolved issues only. "Her response was that children aren't devolved or
reserved."
[3] Equality Act 2006 s.84(1)