Rights and wrongs

The new Equality and Human Rights Commission faced a barrage of criticism, even before its launch. Katharine Quarmby weighs up the reactions.

The Equality and Human Rights Commission (EHRC), which opened for business on 1 October, has a grand mission with which no-one could disagree.

It aims to “eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society”.

The new body will combine the work of the “legacy” commissions, the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE), and the Disability Rights Commission (DRC).

The Commission has faced criticism from all sides – even before it was set up.

To start with, some people have expressed concern at the apparent rather glaring lack of a permanent legal strategy.

The new legal director, John Wadham, who was formerly director of the human rights body, Liberty, only started work a matter of weeks before the launch.

Sir Bert Massie, the outgoing chairman of the Disability Rights Commission, who is also the lead CEHR commissioner on human rights, is concerned about the lack of attention that has been paid to the “nuts and bolts” of how enforcement will work now the new body has taken over.

Will only what are called “strategic cases”, that prove some wider point, be taken?

“I wouldn’t be happy,“ says Sir Bert, carefully, “if that was the case.

Our legal strategy at the DRC was sometimes tactical, but sometimes we just took cases that had no strategic value at all. Sometimes we just thought, ‘this is an injustice and we will hammer this bastard.’”

Other critics charge that the new body will dilute the work of the three legacy commissions and, by seeking to please everyone, will end up pleasing nobody. 

Then there is the question of the budget – £70million annually, which is more than the combined budget of the three legacy commissions, but not significantly more to reflect the workload from extra strands, including work in areas such as homosexuality and trans-gender issues.

The government claims that there will be “economies of scale”.

However, a detailed research report, commissioned by the EOC, found that merging existing commissions in Northern Ireland did not produce expected cost savings.

And some insiders whisper that there has been far too much cash spent on trendy management consultants and head-hunters.

Concerns have also been expressed about the model of the Commission, which is organised into directorates rather than being strand-specific.

In fact, disability is the only strand to have its own committee – a concession which the DRC wrung, after much fighting, from the government.

The rest of the Commission will work cross-strand, grouped into areas such as policy and strategy instead.

Many organisations representing individual strands, such as Help the Aged, and many race and disability groups, are concerned that the cross-strand approach will create what is known as a “hierarchy of interests”.

And others inside the Commission clearly resent the disability committee, feeling that the concession is unfair to other groups. Race groups are particularly annoyed that they did not get their own committee.

And will the Commission, in its eagerness to be fair to all, select a test case from each strand in turn, rather than judging cases on their merits?

Another area of uncertainty is where responsibility in government lies for the new department. 

A new Government Equalities Office has been formed, within the Department for Work and Pensions, to deal with women’s issues.

But race and faith issues will stay within the Department for Communities and Local Government, and the new Department for Business, Enterprise and Regulatory Reform will also play a role.

The EHRC will have to account for its actions to six ministers in three government departments.
While the Commission’s chair, Trevor Phillips (pictured), has come in for personal criticism from some quarters, bodies representing women and gay people have been more muted in their criticism.

But it is an open secret that human rights groups were hoping that Shami Chakrabarti, the director of Liberty, would get the job rather than Phillips.

One insider, trying hard to be balanced, says: “He brings certain strengths to the organisation – he’s good in the media and could be a good champion on equality, but on the other hand he focuses too much on the press. He is a very charismatic figure, on the one hand, and dominated the CRE, but that won’t work in the single Commission. It has to be bigger than one person.”

Another key figure in the new Commission says: “The trouble is that he is trying to pull together a disparate group of people, all of whom know that they could chair the new body themselves,” adding that his “management style is not collegiate at all. There is no collective decision-making.”

Despite the reservations of many, Sir Bert Massie, who was once fiercely opposed to the single Commission, now accepts that it is “the only game in town.”

Colm O’Cinneide, who carried out research on single equality bodies for the DRC, says that the success of the new Commission will come down to “personnel and ambition".

"The danger will be that the Commission could end up doing too much on the mushy idea of equality and will lose focus on the many battles that are being fought today in the name of equality. But there is a real danger in throwing stones prematurely. There is no intrinsic reason why it should go wrong.”

He adds that his research shows that single commissions can be successful, and points to the Canadian and Irish models, and emphasises, for good measure, that single commissions are springing up right across Europe.

Frances Butler, a human rights specialist who served on the taskforce that preceded the EHRC, is also optimistic that it will succeed – in part because of the human rights approach.

“It is going to be a challenge, it will be a big picture Commission, it is going to be more catalytic, but what I have seen has given me confidence.”

Baroness (Jane) Campbell (right), the veteran disability campaigner and peer, who chairs the EHRC’s disability committee, is fiercely optimistic.

“I’m wedded to this. I was its biggest sceptic, but now I have to say that the EHRC makes me feel like a whole person, that my identity is acknowledged. It feels like coming home.”

She wants the disability groups to get with the programme.

“The EHRC will give us the tools to reach the most disadvantaged people in society. The disability movement has been about people like me – white, middle-class wheelchair-users – for too long. Now the human rights approach will give us a richer vocabulary.”

She is more circumspect, however, about how enforcement will work.

“Like the DRC, we will take strategic cases that will move us forward in equality law but if there is something that is a persistent and strong case of discrimination we will take that too.”

But she has two caveats – first, that the CEHR intends to “capacity-build” in the outside world so that other groups can take on legal challenges, and, secondly, that the Commission is there to serve all Britons and that there is a need for “realism”.

That said, the disability movement can be said to have done itself a better deal than race or gender groups.

It not only has its own committee, safe for five years, but also a “disability programme director” – which none of the other strands have.

Baroness Campbell defends the “asymmetry” of the deal – for now.

“It’s up to us to defend it, but if we can get disability integrated and in the EHRC’s bloodstream, then our asymmetry can be reviewed in five years.”

But the worries that disability campaigners have about the EHRC surface again and again.

Many point to the fact that some of the body’s finest minds spent many weeks before its launch working on a “rebranding” exercise, as it changed its name from the Commission for Equality and Human Rights to EHRC.

DDA test case

Gaynor Meikle, a teacher with a visual impairment, won compensation of £196,000 in 2004 after her employer refused over several years to make reasonable adjustments by providing lesson timetables and other materials in larger print.

Her case established that constructive dismissal is covered by the Disability Discrimination Act and that payment of sick pay is subject to reasonable adjustment.

Mrs Meikle says: “The Disability Rights Commission supported me all the way. I wish my case was extraordinary, but I really don’t think it is. A lot of people give up because they don’t know how to fight.”

She is not sure whether the EHRC will have the same positive attitude towards the rights of disabled people, or the expertise to help them fight.

The triumph against Ryanair

Bob Ross, a wheelchair-user, won a case against the airline Ryanair, which charged him £18 to borrow a wheelchair at check-in in 2002. He was supported by the DRC.

The airline appealed, but lost in the Appeal Court, which ruled that it and Stansted Airport were responsible for providing a free wheelchair service.

Mr Ross says: “Without the backing of the DRC I wouldn’t have been able to take the case. I was going up against two giants. But I felt it was something worth fighting.”

He added: “My concern is that the EHRC covers so many areas. I am not sure that disability cases will be prioritised. They won’t be top of the list.”