Fairness For All: A new commission for equality and human rights white paper - BECTU response

21 July 2004

1. BECTU is the trade union for creative, technical and administrative workers in the audiovisual and live entertainment industries. As an organisation we welcome the opportunity to respond to the Government's proposals as set out in the White Paper.
2. BECTU welcomes the White Paper �Fairness for All' as a recognition by the government that the best practice established by the existing equality Commissions should be at the heart of the proposed new Commission for Equality and Human Rights. In particular, BECTU is pleased that the momentum of the most recent of the three, the Disability Rights Commission, is intended to be maintained in the CEHR, and that many of its groundbreaking principles, such as the duty to promote equality, are to be adopted throughout the new Commission.
3. The White Paper's recognition of trade unions as partners in the delivery of the CEHR's objectives (para. 2.7) is welcome. In response to Question 1, BECTU considers that more detail needs to be worked out probably with the Trades Union Congress on how this partnership will work in practice. Active involvement with trade unions' national leaderships should be informed by input from their equality committees, networks or working groups of members who have direct experience of discrimination.
4. BECTU notes that the White Paper refers (para. 3.6) to the CEHR's role as "a champion", and that it "will be able to go beyond working with the groups that are specifically protected by discrimination law." If this means the CEHR will pro-actively become engaged with diversity issues in society before questions of unlawful discrimination even arise, then BECTU welcomes this.
5. The White Paper states that the CEHR "will promote awareness and understanding of human rights" (para. 3.9). It goes on, however, to make it clear (paras. 3.16, 3.36, 4.2) that the CEHR will have no powers of intervention or enforcement in stand-alone human rights cases. BECTU regrets this. At the very least an opportunity has been lost to establish a clear and comprehensive human rights framework for the UK. The different legislative position in Northern Ireland, in Scotland (with a proposed Scottish Human Rights Commission - mentioned in para. 9.10) and in Wales, already complicates the approach to human rights across the UK, arguably contradicting the notion of the universality of human rights. In England, leaving responsibility with the Joint Committee on Human Rights for the scrutiny of the compatibility of proposed new legislation with the Human Rights Act (para. 3.38) is, in our belief, a mistake. It will leave the JCHR uncomfortably outside the principles of promotion and social engagement that the CEHR itself is supposed to embody.
6. Disabled people in particular frequently experience an acute human rights dimension to their claim to equality. BECTU believes that the creation of a Children's Commissioner (mentioned in para. 7.44) will expose human rights issues in enforcing the rights of children, which will prove analogous to cases involving disability discrimination.
7. BECTU is appreciative of the clear and succinct summary of existing equality statutes given in Appendix A of the White Paper. It regrets all the more that in the White Paper the government has chosen not to consider consolidation of equality legislation before the creation of the CEHR. The government goes on to announce in the White Paper (para 7.58) its intention to introduce duties on public bodies to promote equality of opportunity between men and women in the same way as the current draft Disability Bill sets out provisions for the promotion of equality of opportunity for disabled people: it is clear some legislative consolidation is under way already. The White Paper gives the CEHR the task of "[keeping] the working of [existing] discrimination legislation and the HRA under review" (para. 3.34). This review function will extend, the White Paper goes on to say (para. 3.35), "to [advising] that a particular feature of a proposed piece of employment legislation could result in indirect discrimination". It will presumably not be permitted similarly to advise in relation to the HRA, even if it goes on to recommend consolidation of discrimination laws.
8. We also find it anomalous that though the government's intention is elsewhere to "put beyond doubt" the CEHR's capacity to intervene and to "give a positive signal to the courts about the potential value of the CEHR's involvement" (para 4.12), it expressly rejects giving it the ability to intervene in human rights cases, leaving the courts with unqualified jurisdiction (para. 4.18). Even if the CEHR were entitled to intervene in human rights cases, this would be merely "to support the development of a flourishing human rights culture in the public sector" (para. 4.13) - whatever this may mean. This constitutes our response to Question 2.
9. Similarly, we find a contradiction in the statement (para. 4.23) that "To be successful, the CEHR must be able to tackle effectively deep-rooted and systematic discrimination as well as helping individuals to secure their rights." It is precisely here, we believe, that "free standing" human rights cases might be an important means of exposing and tackling "institutionalised" racism, sexism or disablism.
10. BECTU strongly welcomes the proposal (para 6.3) that "the CEHR will have a statutory duty to promote good relations among the different communities protected by discrimination legislation and between those communities and wider society." The ultimate aim, of course, is to reach a state where presently "different" self-interested "communities" no longer experience any pejorative dislocation from "wider society". In response to Question 3, we see areas of activity for the promotion of good relations at local level as including trades unions and trades councils, chambers of commerce, and - outside the business and employment sphere - centres for community arts and media, recreation, youth and sport.
11. BECTU is not responding specifically to Question 4, which seeks comments rather than asks a question. However, we agree with the statement (para. 7.9) that the CEHR will be better able than the existing Commissions to address effectively cases involving multiple discrimination against an individual.
12. We also support the stated aim that the CEHR should be "an exemplar of innovation and good practice" (para. 7.13). In our view the DRC has been a valuable role model in this respect. BECTU welcomes the White Paper's clear statement (para. 10.13) that the government recognises the unique role of the DRC and the need to provide continuity for its work, particularly when a significant programme of disability legislation is already in train.
13. We note that the government "expects members of the CEHR board and senior management team to include people with experience of business and management" (para. 7.23), and trust that this definition will be extended to people from a trade union background.
14. The White Paper points out (para. 7.32) that "It will be essential for there to be a clear separation between promotion and enforcement activities within the CEHR." We believe this may prove problematic in the proposed nine English regional offices of the CEHR, where different relative regional pressures - unemployment, racial or religious tension, demographic makeup, urban or environmental decay, geographical extent - will make "responsive and sensitive" delivery (para. 8.6) of either or both functions more difficult. This will be compounded if, as the White Paper envisages (para. 8.13) regional CEHR offices work in partnership or are co-located with other regionally-based agencies. There may even be difficulty in tracing the local CEHR office if the co-located agency does not need the same accessibility; there may be variations in the quality of shared resources (what, for instance, if it becomes expedient for the co-located presence to be operated part-time?) Consequently the quality of delivery of CEHR services may vary according to postcode, to the detriment of their reputation nationally. This is our response to Question 5.
15. Our final concern is over the proposed "shadow CEHR". As the White Paper says, this will have "a key role in promoting closer or joint working between the existing Commissions and new strand organisations" (para. 11.10). It will have on the one hand to ensure that the work of the Commissions continues unabated, but on the other hand to avoid becoming bogged down in the bureaucratic complexities of preparing for the full CEHR to take that work over. A launch date for the CEHR may be further off than is hoped for even in the White Paper's heavily qualified phrase "not [...] before the end of 2006 at the earliest" (paras. 11.1, 11.12). In our view this makes it more imperative to work in the meantime towards the harmonisation and consolidation of the legislation (leaving aside the effect of any change of government) which the CEHR will have to enforce and review.