A new Commission for Equalities and Human Rights (CEHR - http://www.cehr.org.uk ) will come into existence in October of this year. It will have responsibility for addressing issues of discrimination in the following areas:
- Age
- Disability
- Gender
- Gender reassignment
- Race
- Religion or belief
- Sexual orientation
as well as the promotion of Human Rights.
From 1 October, the following commissions - which previously had responsibility in some of these areas - will cease to exist:
- The Commission for Racial Equality (CRE)
- The Disability Rights Commission (DRC)
- The Equal Opportunities Commission (EOC)
The government is proposing to bring forward a parliamentary bill to form a new Single Equalities Act to give coherence to the work of the new commission; and there have been, to date, a number of consultations around the powers and duties of the CEHR.
During the present consultation, many of the organisations representing ethnic minorities, plus the three commissions which will cease to exist on 1 October, have been critical of aspects of the government proposals - particularly on the grounds that the capacity to address the various forms of discrimination may be actually diminished in certain of the areas by the new proposals.
The response submitted by the Federation is given below:
FIS Response to the government's 'A Framework for Fairness: Proposals for a Single Equality Act for Great Britain'
BACKGROUND
As a national organisation working on behalf of the Irish community in Britain (www.irishsocieties.org) the Federation of Irish Societies has had a close interest in the issue of a Single Equality Act from the outset.
This interest exists because of the position of the Irish community as a substantial ethnic minority in Britain which has been subject to racialisation and discrimination[1]. As an organisation representing and working with one of Britain's ethnic minorities, we have sought to work closely with the Commission for Racial Equality during its existence. We acknowledge its assistance particularly in sponsoring the Hickman/Walter report, in pursuing cases of anti-Irish/anti-Irish Traveller racism and in advocating the use of an Irish category in ethnic monitoring.
As our own specific expertise in the field of equalities is greater in relation to the race equality duty than in regard to the other areas, it is on that area that our further comments will largely focus, although we believe that there is an element of commonality in terms of attitudes and practices which contribute to a range of inequalities.
However, our interest in the proposals to develop a Single Equality Act is a broad one, since members of the Irish population also come under the other equality strands for which the Commission for Equality and Human Rights has responsibility.
PREVIOUS FIS RESPONSES TO GOVERNMENT'S SINGLE EQUALITES PROPOSALS
While welcoming many of the proposals in the government's consultation paper Fairness for All: A New Commission for Equality and Human Rights (2004), the lack of provision for an overarching Single Equalities Act - to give coherence to the proposals as a whole - was one of FIS's criticisms of that document and of the bill which followed.
However, we were also worried by other aspects of the government's proposals. A serious issue for FIS was what we referred to as "the relative downplaying of robust monitoring and enforcement in comparison to the focus on development of information and conciliation services and partnership working."
In a briefing to our members, we explained what worried us about the thrust of the document: "There appears to be an overoptimistic view underpinning this document of the benefits of improved information, and persuasion in reducing discrimination. In describing the functions of the proposed new body, words like 'Encouraging', 'Promoting', 'Working towards', 'Keeping...under review', 'advising' are those most constantly used. This contrasts with comparatively little emphasis on the new body's powers of audit (investigation/monitoring) and enforcement; and there is an underlying concern within the document at a possible "risk [of] opening up unmanageable demand and overwhelming the CEHR" through a hypothetical provision of "support across the board" to all individuals with discrimination claims."
"Features like the above have caused concern among stakeholders, particularly those concerned with the race equality agenda, that enforcement of compliance may be diluted or discouraged rather than enhanced, at a time when discrimination arising from racism ...is still a substantial issue to be addressed. They see strong powers to challenge racism as vital to the upholding of this agenda (alongside information and persuasion)."
We made clear in our response to the consultation that we did not see enforcement and persuasion as alternatives: "We see this as a difficulty not because we see enforcement and persuasion as alternative, mutually exclusive strategies, but because we see the relationship between these two elements as being crucial to the promotion of race equality...we welcome many of these 'persuasion' proposals. However, we do also believe that at the present time there is a need to strengthen the powers of auditing and enforcement...and we do not believe that any substantial proposals to achieve this have been made in this document...we feel that the thrust of this document's proposals is in the opposite direction."
Later, when the Equalities Bill was being considered in parliament in 2005, we restated these concerns, as we had already done in our submission to the Equalities Review. [2]
In relation to the Equalities Bill, also, we expressed FIS's concern at the removal of the duty on the CRE to consider applications by individuals for assistance under the Race Relations Act of 1976.
"Section 66 of the Race Relations Act of 1976 laid a duty on the CRE to consider applications by individuals for assistance under the Act; section 66 (1) of the present Bill proposes that the Commission for Equality and Human Rights "shall consider the application and may grant it if they think fit to do so"."
"The CRE have used this duty quite carefully and responsibly; and the CRE believe that this duty should continue."
"It is this aspect of the CRE's activity which has been most relevant to the Irish community in terms of the cases of discrimination against Irish people (including Irish Travellers) successfully pursued by the CRE."
"Apart from safeguarding the right of an individual victim of discrimination to apply for assistance, the procedures involved in following up the duty imposed by the 1976 Act provided the CRE with knowledge and expertise around issues of discrimination which proved valuable in other contexts."
THE CONTINUING NEED FOR THE RACE EQUALITY DUTY
There is still a need to challenge institutional racisim in the sense in which that is defined in the Macpherson Report. We would argue that the process by which the needs of Irish people are widely ignored in research, policy formation and service delivery is yet another form of institutional racism.
The CRE argues that "a group of influential government departments responsible for major national policy have been failing to undertake race risk assessments on many or any of their proposals."[3]
The CRE has also given cogent evidence-based arguments, in the document quoted above, as to why a race equality duty is still needed in 2007.
THE GOVERNMENT'S CURRENT SINGLE EQUALITY PROPOSALS
The proposed new cross-equality duty
The most worrying aspects of this are:
(a) the apparent proposal to replace the existing race, disability and gender duties incumbent on public bodies with a vaguer and more limited duty to take proportionate action with regard to a limited number of equality priorities
(b) the apparent replacing of existing race equality schemes, policies and employment monitoring duties with 'statutory principles' to underpin action to support the limited number of equality priorities agreed upon
(c) the apparent prevention of individual or group litigation by the confining of enforcement to CEHR's Legal Committee which will constitute a single trigger or enforcement mechanism
The underlying thinking of these proposals appears to stand in contrast, for example, to the more robust 'purpose clause' which has been suggested by the CRE, DRC and EOC in the paper 'Creating an Effective Equality Duty'. This makes direct reference to negative practices such as systematic and unlawful discrimination, harassment and victimisation, as well as to positive practices such as the social inclusion of the individual, respect for and protection of the human dignity of the person, and the promotion of good relations between individuals and groups.
This proposed 'purpose clause' would also support the addressing of multiple discrimination something which does not appear to be contemplated in the government document.
Equality duties, monitoring and enforcement
We feel that greater detailed attention should have been given to the subjects of monitoring and enforcement in the consultation document.
We would also wish to see any proposed legislation retain the existing equality duties, including the duty to produce equality schemes and to monitor performance. We would also wish to see these duties extended and developed, where necessary and appropriate, within the equality areas in the remit of the CEHR.
Resolution of disputes
In some respects this is a highly technical area. As the CRE has experience in dealing with the legal issues which arise, we would be inclined to pay attention to the arguments concerning:
- the extension of the powers of employment tribunals to enable them to make recommendations which have a wider impact than on merely the individual claimant
- the use of the civil courts
- the need for greater clarity on the use of assessors
- use of representative and class actions, and 'own name' proceedings
- the imposition of a duty on the court service to serve the CEHR with notices of discrimination claims and judgements
- their views on the use of ADRs and ombudsmen services
We endorse their concerns about obstacles to access to justice such as lack of legal representation or access to legal aid, and costs orders in civil courts and employment tribunals.
Given that there is now a commitment to single equalities legislation we cannot see why more serious consideration should not be given to the proposal of Equality Tribunals.
Generally speaking, we support the CRE's view that wherever possible matters should be resolved early without the need for litigation; but litigation will still be necessary in those situations where organisations or individuals in authority encourage or fail to challenge racism or other discriminatory practices.
Public procurement
We support the CRE's request for legislation setting out minimum equality standards in public procurement which will address the complex issues discussed in their briefing, CRE Briefings on Discrimination Law Review: Public Procurement, including the issue of discrimination by contractors delivering public services.
Balancing measures
We welcome the proposal of the DLR to allow employers and others to make more rapid progress towards addressing under-representation.
[1] Hickman M J and Walter B, Discrimination and the Irish Community in Britain (CRE 1997).
[2] In our submission to the Equalities Review, we also drew attention to the way in which the Black/White binary on which most of the discussion of race and the 'ethnic penalty' is structured in Britain discriminates against the Irish (and other largely 'white' communities) in contributing to the invisibility of Irish needs.
[3] CRE Briefings on Discrimination Law Review: Equality Duties (2007)