§ The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)
The Commission for Equality and Human Rights (CEHR) will be a champion of equality and human rights and a key step towards realising our vision of a fairer, more cohesive and prosperous Britain based on mutual respect and understanding.
In May we launched the White Paper Fairness for All: A New Commission for Equality and Human Rights (Cm 6185) setting out our vision for the CEHR. The White Paper stimulated a wide-ranging debate that showed the strong interest in our proposals from all sides. We are grateful for the many high-quality responses received, which have helped shape and refine our proposals. We have given them very careful consideration.
We have today published the Government's response to the comments made on the White Paper, which has been placed, together with a list of respondents, in the Libraries of both Houses. Copies of individual responses are available from the Department of Trade and Industry library.
The Government welcome the general support for their proposals, and especially for the foundations of equality, human rights and good relations that will underpin the CEHR. We note the strong welcome given too to the contribution the CEHR will make in Scotland and Wales, the duty on the CEHR to involve stakeholders and the public as it develops its plans, the proposals for regional arrangements and the distinct arrangements for the CEHR's work on disability. Employers welcomed the emphasis on working in partnership with business, and better access through the CEHR to advice on all areas of equality law. The potential benefits to small and medium-sized enterprises were particularly noted.
The Government recognise that some groups, especially black and minority ethnic communities, have reservations about the proposals, and are pledged to maintain dialogue with them so as to find a basis for the CEHR in which all key interests can share. The new approaches set out in the Government's response demonstrate that we have been listening to all stakeholders including BME communities over recent months and working closely with the Commission for Racial Equality (CRE).
The Government confirm their intention, set out in the White Paper, to proceed with legislation to establish the CEHR as soon as parliamentary time allows, but as a result of consultation with some important improvements, set out below, on the White Paper proposals.72WS
We intend to legislate too to introduce—provisions to outlaw discrimination in the provision of goods, facilities and services (and are giving consideration to including public functions), and a general framework to introduce a duty on public bodies to promote equality of opportunity between women and men and to prohibit sex discrimination in the exercise of public functions.
The CEHR's fundamental objectives
Our vision for the core purpose of the CEHR is to:
- build and nurture respect for equality, diversity and human rights;
- work towards compliance with equality and human rights legislation;
- and promote good relations between communities.
These are balanced, interlinked roles, each underlining a fundamental aspect of the CEHR's work. Each is critically important in helping deliver a fairer society, in which everyone has the chance to fulfil their potential and be treated with respect and dignity.
Within this, the CEHR's work will comprise three pillars of equal importance: equality and diversity, human rights and good relations. These are mutually reinforcing and together will create a new framework to challenge prejudice and discrimination.
Equality and diversity, human rights and good relations
The CEHR will promote an inclusive vision of equality while respecting the specific experiences of discrimination of different groups. It will work to tackle discrimination and build new understandings of equality as key to a flourishing society, working both through influencing attitudes and practice and through the use of its enforcement powers. While effective promotional work by the CEHR will lead to improved compliance with the law, the Government recognise that the CEHR's enforcement powers are an essential element of its role and expects it to use them effectively.
Promoting a culture of respect for human rights will be at the heart of the CEHR's work. The CEHR will promote protection, awareness and understanding of human rights in society generally. It will bring a step change in raising public bodies' awareness of their obligations under the Human Rights Act and supporting them to achieve compliance.
The Government believe that the CEHR's role in promoting good relations between different communities will help contribute to a more cohesive society based on shared core values and a new sense of British identity. It will be particularly important to build on CRE's good relations work and we intend that the CEHR's statutory duties in this area should give priority to work with race and faith communities, while encouraging the CEHR to work more broadly where it will add value. We will ensure too that the CEHR's powers give it an explicit remit to combat prejudice and work to reduce crime affecting particular communities groups, such as hate crime and crimes of incitement to hatred.73WS
Consulting and involving
Respondents warmly welcomed the White Paper's emphasis on the CEHR reaching out to stakeholder communities and involving them in all facets of its work—supported by the proposed statutory duty to consult on its strategic plan. We look to the CEHR to develop innovative means to secure public involvement and ensure that marginalised groups and communities are given a voice.
A duty to monitor progress
Respondents shared our vision of the CEHR as a driver of change towards a fairer society, and it will be important to be able to assess systemic progress towards this goal. We therefore intend to place on the CEHR a specific duty to monitor progress towards broad equality and human rights goals by publishing a periodic "state of the nation" report, which will track progress on a range of indicators. This will provide a powerful, objective means to show where effort needs to be directed and to measure success. To deliver this, the CEHR will need to develop a comprehensive information base across the strands, informed by its own research, and other existing data sources. This will reinforce the call in Fairness for All for the CEHR to develop a strong evidence base to underpin its work.
The CEHR's powers and duties
The CEHR's powers and duties need to support its role as a modern, effective regulator, working robustly for compliance with the law, and its role as an agent for change. While the powers and duties proposed in the White Paper were generally welcomed, many valuable proposals were made to enable the CEHR to carry out its mission better. New powers relating to its equality and human rights remit, which will provide a tailored, flexible set of tools to drive up good practice and ensure compliance, are set out below. New powers to supporting its good relations duties, including combating crime and prejudice, have been described above.
Supporting court or tribunal cases under the equality legislation will be a key function of the CEHR, as it is for the existing commissions. While the White Paper proposed some criteria to guide the CEHR in making decisions on which cases to support, we recognise the strength of views expressed that the CEHR needs complete discretion in making these decisions. Accordingly, we no longer intend to include any criteria for case support in legislation, so providing more flexibility than the current discrimination statutes allow. We expect however the CEHR to consult on and make clear the criteria it will use in practice.
As well the CEHR's direct support to individuals, there will be important benefits from its work with other advice-giving organisations to equip them better to provide advice and support on discrimination and human rights issues.74WS
Fairness for All sought views on whether the CEHR should be able to continue to support cases which draw on both discrimination and human rights arguments once the discrimination arguments have fallen away. The Government agree that provision should be made for the CEHR to be able to provide such support but believe that experience should be gained first of the number and nature of cases coming forward. They intend therefore to include in legislation an order-making power that would allow this power to be conferred.
We can clarify that the CEHR will be able to bring proceedings in its own name against persons committing acts of unlawful advertising, instructions and pressure to discriminate, maintaining the current powers, though this was not explicitly stated in Fairness for All.
Inquiries and investigations
We note the concern of many respondents that the CEHR's powers of inquiry and investigation should cover the full range of options available to the existing commissions, and provide a full and flexible set of tools. We intend therefore to recast the powers proposed so that they carry forward all the powers conferred in current legislation.
This means that the CEHR will be able to investigate named bodies not only in respect of alleged unlawful discrimination or harassment (which as now will need to be triggered by some evidence) but also to conduct inquiries relating to any other area of the CEHR's responsibilities—though no sanctions could follow such an inquiry. This will give it a flexible tool to look into practice in equality, human rights and good relations as appropriate, and work with the bodies concerned for improvement on a partnership basis, on the lines of the current powers of the Disability Rights Commission (DRC) in respect of its remit and those of the Equal Opportunities Commission (EOC) and CRE set out in their founding statutes. However, the CEHR will not be able to make any finding of fact that a public authority has breached its obligations under Section 6(1) of the Human Rights Act 1998, a finding that is properly made by a court or tribunal where necessary.
We also intend that there should be no restriction on the CEHR's powers to compel evidence in the course of an inquiry or investigation, in contrast to the earlier proposal to require the authorisation of the Secretary of State. This will enable the CEHR to act fully independently in its conduct of inquiries and investigations—subject to a safeguard that a person can apply to the court to have a request set aside if it appears unnecessary or unreasonable.
The Government attach great importance to the CEHR's role in promoting and enforcing the duty on public bodies to promote race equality, and the duties proposed for disability and gender, so that public services are more responsive to diverse needs. As foreshadowed in Fairness for All, we intend to introduce a power for the CEHR to assess a public body's performance of the duty, as a flexible, graduated means of securing improvement and as an 75WS alternative to compliance action enforceable through the courts. This will form part of the suite of inquiry and investigation powers. A range of outcomes might follow from an assessment, ranging from recommendations and an action plan, though formal enforcement could ensue if this is justified.
The White Paper proposed measures to ensure that CEHR takes full account of the distinctive nature of disability discrimination and provides disabled people with a clear voice.
The Disability Committee will have wide delegated powers in the areas of the CEHR's work that are unique to disability, covering discrimination (including the duty of "reasonable adjustment") relating to access to goods, facilities and services, education, and transport (Parts 3 and 4 of the Disability Discrimination Act as it will be amended by the Disability Discrimination Bill). The committee will also exercise the CEHR's functions in relation to Part 1 of the Act, which deals with the definition of disability. The CEHR will be obliged to involve the committee in its cross-cutting work on employment and on the public sector duties, and ensure that the committee's work is properly resourced. The committee will have powers to advise the CEHR on disability matters generally.
While welcoming these proposals, disabled people and their organisations have made clear the importance they attach to the continuation of the order-making power in the DRC Act to enable the DRC to give assistance in proceedings brought otherwise than under the Disability Discrimination Act, where a person's disability is a key factor. The Government recognise the strength of this concern and will include an equivalent provision in the CEHR's legislation.
Scotland and Wales
Devolution has created a new British context for equality and human rights. The CEHR must be able to respond directly to the specific needs of each nation, taking account of the distinct legal, political and cultural framework in which both now operate.
We have responded to the strong calls for the CEHR in Scotland and Wales to have autonomy to set their own priorities. Statutory committees in Scotland and Wales will have responsibility for a wide range of activities, in particular for the CEHR's promotional work, and will be able to determine how these activities should be delivered. The CEHR board will also be charged with a duty to consult the national committees in respect of functions outside the committees' remit.
Concern was expressed about imbalances in the current legislative provision in the Race Relations Act, where it has emerged from case law that Jews and Sikhs are protected from discrimination but not other religions or beliefs. The need to afford protection from discrimination is felt particularly acutely by Muslims in 76WS Britain, and the case for doing so was powerfully made in the responses from the Muslim Council of Britain and the Commission for Racial Equality. Similar calls were heard in the course of the Government's "strength in diversity" consultation exercise.
The Government have long recognised these concerns. We have already taken action by way of the Employment Equality (Religion or Belief) Regulations 2003 to implement the religion or belief strands of the European Council Directive 2000/78/EC of 27 November 2000 in Great Britain which affords protection to all religions or beliefs in employment and occupation.
We intend to change the law to make religious discrimination unlawful in the provision of goods, facilities, services and premises, and are actively considering the extension of this protection to public functions. We intend to afford protection in this area from direct discrimination, indirect discrimination and victimisation.
The regional dimension
Empowering the CEHR to engage regionally and locally, so that it draws from experience "on the ground", will be an important facet of its work. We shall be working with all the interests concerned to develop further the White Paper proposals for the CEHR to have a regional presence, which received a very positive response.
Many stakeholders expressed concerns about imbalances in the current legislative provision for the different equality areas in their responses to the consultation on the CEHR. The Government have long recognised these concerns. We are beginning to consider the best mechanisms for reviewing the current discrimination legislation framework, as part of its continuing work in reviewing barriers to equality, taking into account the interests of the many different stakeholders who would be affected by any changes to the current position. The CEHR will clearly have an important role to play in this review and will separately be empowered to recommend changes to discrimination legislation as it sees fit.
Establishment of CEHR
The Government intend to appoint the chair and commissioners by 2006 so that the body will be up and running in 2007. A process of phased entry is anticipated for the existing commissions, with all of them being incorporated by 2008–09.