The Equality and Human Rights Commission was established by the 2006 Equality Act, which gave it a series of statutory powers to enforce equality and human rights legislation (see previous chapter for details of these). It replaced the three previous equality commissions (Commission for Racial Equality, Equal Opportunities
Commission and Disability Rights Commission), each of which were responsible for specific areas of equality. Article 24 of the EU Racial Equality Directive
(2000/43/EC) and Article 20 Recast Equal Treatment Directive (2006/54/EC) require the establishment of national equality bodies in all member states. The EHRC is the UK’s national equality body.
The EHRC is a Non Departmental Government Body, often also referred to as a Quango (Quasi Autonomous Non-Government Organisation) defined as ‘a body
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which has a role in the processes of national government, but is not a government department or part of one, and which accordingly operates to a greater or lesser extent at arm's length from Ministers’ (Cabinet Office 1997). It is headed by a Chair and a board of Commissioners, who are appointed through a public appointment process, subject to approval by the responsible Minister (this has varied as the responsibility for sponsoring the EHRC has moved between departments). During the 2000s a series of reports by parliamentary committees, official inquiries, think tanks and others had raised concerns with the proliferation of NDGBs, their growing budgets, lack of clarity over their roles (or even how many existed), and weaknesses in the relationship between these bodies and their sponsoring departments (Dommett and Fliders 2015). As a result all three main political parties included a commitment to reform ‘the quango state’ in their manifestos for the 2010 election (Dommett and Filders 2015). Within days of the election the Coalition government announced a review of all public bodies. This recommended the abolition or amalgamation of over a third of all public bodies as well as changes to the governance of those that remained. These recommendations were taken forward in the 2011 Public Bodies Act which gave the Government to modify the ‘constitutional arrangements’ of a range of public bodies (including the EHRC). This included the power to change the chair, powers to employ staff, constitution and role and the ‘extent to which the body exercises its functions on behalf of the crown’ (Public Bodies Act 2011 3). The government also gained the power to amend the funding arrangements for a number of public bodies (again including the EHRC) and to modify their functions (Public Bodies Act 2011 4 and 5). This means that the Government can now change the functions of a range of public bodies without the need for primary legislation. The potential implications for the EHRC’s role as an independent body were made clear during the parliamentary debate on the Public Bodies Bill. Baroness Meacher for example asked during the Lords’ second reading of the Public Bodies Bill, ‘How can an organisation hold the Government to account if that Government, without even proper parliamentary scrutiny, can turn around and punish that public body by reducing its powers?’ (Meacher 2011, quoted in Brett 2012). Outside parliament, campaigning groups and trade unions also expressed concerns that these changes would make the EHRC far less likely to challenge Government on equality, since the Government now has the power to significantly reduce its functions (Brett 2012).
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Following the passage of the Public Bodies Act, the Government launched a
consultation on the future of the EHRC which proposed changes to the EHRC’s role and function. These included the removal of the ‘general purpose clause’ in section 3 of the 2006 Equality Act to encourage and support the development of a society in which:
(a) people's ability to achieve their potential is not limited by prejudice or discrimination,
(b) there is respect for and protection of each individual's human rights, (c) there is respect for the dignity and worth of each individual,
(d) each individual has an equal opportunity to participate in society, and (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights. (Equality Act 2006, 3)
Other recommended changes were the removal of the duty to promote good relations in section 10 of the 2006 Equality Act, the ending of the EHRC’s power to make grants and the closure of the EHRC’s helpline for members of the public facing discrimination and replacement with a new private sector service commissioned by Government. The Government faced strong parliamentary opposition to the removal of section 3 of the Equality Act, which still remains in force. However the duty to promote good relations (section 10) was removed in the Enterprise and Regulatory Reform Act 2013 and both the power to make grants and the helpline have been removed from the EHRC. The helpline had dealt with over 40,000 calls a year and provided important link between individual cases of discrimination and the EHRC’s wider strategic work (Brett 2012).
Also in 2013 the Government introduced a new Framework Document, governing the relationship between the EHRC and the Department for Culture Media and Sport (DCMS), which had taken over from the Home Office as the EHRC’s sponsoring department (DCMS 2013b). This document sets significant restrictions on the EHRC’s powers to run public information campaigns. Advertising and public
information campaigns are only allowed where the EHRC has a legal duty to provide people with information, where critical to the effective running of the EHRC or where there ‘is robust evidence that marketing and advertising delivers measurable outcomes that meet ERHC objectives’ (DCMS 2013b p5). This is likely to make it
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harder for the EHRC to run the sort of public information campaigns carried out by previous equality bodies such as the Equal Pay campaigns run by the EOC since the outcomes of these sorts of public information campaigns may be difficult to monitor with sufficient robustness.
Alongside these cuts to its role the EHRC has faced a dramatic cut to its annual budget. In January 2013 Maria Miller announced that the EHRC core budget would be £17.1 million per annum, down from £70 million when the EHRC was launched (GEO 2012). In written statement to the Guardian, Minister for Equality, Maria Miller, acknowledged that these changes were all part of a change of focus from the EHRC away from campaigns aimed at changing public attitudes or lobbying
Government on the equality or human rights impact of policy to that of an ‘expert witness’:
Of course we need impassioned lobbyists in the area of equalities but that is not the role of the EHRC. It shouldn't be leading emotive campaigns; rather its role is to be an expert witness, [and] to make recommendations on the basis of the facts (Guardian 2013).
A further issue raised by several former EHRC staff members and national civil society activists was the refusal of the Coalition government to allow the EHRC to publish a statutory code of practice for the PSED. The previous equality
commissions (CRE, EOC and DRC) all published statutory codes of practice for the previous equality duties that could be used as evidence of what public bodies were required to do in court. The EHRC produced a draft code of practice for the PSED but in order to be a statutory code it would have to be presented to parliament which has not happened. Both former EHRC staff members stated that this was because before the code could be presented to parliament it had to be signed off by all Secretaries of State and that Michael Gove, then Secretary of State for Education, refused to agree to this. Both EHRC staff members saw this as response to the judicial review against the Department for Education’s cuts to the ‘building schools for the future’ programme under the PSED. Instead of a statutory code of practice the EHRC has published the code as ‘technical guidance’, which does not have the same legal standing.
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Taken together these cuts to budget and changes to its role significantly reduce the power of the EHRC. So long as the UK remains a member of the EU it is obliged to have a national equality body. However although all the mechanisms for enforcing the PSED and other parts of the Equality Act remain in place, the cuts to its budget means that the EHRC now has far fewer resources with which to carry out this work. The fact that the Government can now make significant changes to the EHRC’s role through secondary legislation may make the organisation more wary of public challenges to Government policy. The removal of the ‘good relations’ function and the limitations on advertising and public information spending restrict the ability of the EHRC to run campaigns to encourage members of the public to hold public bodies to account under the PSED. How the EHRC is carrying out its enforcement role in this new situation is the subject of the final part of this section. The next part explores the changing way in which equality has been framed within the EHRC.