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The regulatory space of equality and human rights in Britain: the role of the Equality and Human Rights Commission

  • David Barrett (a1)

Abstract

The Equality and Human Rights Commission was created in 2006 with wide-ranging powers to protect human rights, promote equal opportunities and encourage mutual respect between different groups. Alongside the Commission, individuals through the courts, and sector-specific enforcers (such as ombudsmen and regulators) have also been given equality and human rights enforcement powers. Within this enforcement landscape, the Commission has struggled to craft an enforcement role for itself. For the first time, this paper, through the mapping of these different actors in their shared regulatory space, outlines a role for the Commission in equality and human rights enforcement. This role consists of three primary tasks: (i) taking action that courts and sector-specific enforcers are unable to perform; (ii) overcoming some of the limitations of private enforcement in the courts; and (iii) coordinating and supporting sector-specific enforcers. The paper concludes by exploring how the Equality and Human Rights Commission (EHRC) can effectively fulfil this role.

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Corresponding author

*Author email: D.Barrett@exeter.ac.uk

Footnotes

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The author is extremely grateful to Jonathan Doak, Helen Hall, Ralph Henham, Paul Hunt, Tom Lewis, Tonia Novitz, Tony Prosser and Mary Seneviratne for their insightful comments on previous drafts. A previous version of this paper was presented at a workshop entitled ‘Human Rights after Brexit: The Future of Human Rights in the UK’ on 23 March 2017 at the Lauterpacht Centre for International Law, Cambridge. The author was aided by the discussion and comments he received on his paper from all the participants, but particularly those from Veronika Fikfak, Stephanie Palmer and Alison Young. Special thanks are also due to the person that introduced me to theories of reflexive governance, which has immeasurably benefited the paper. Finally, I greatly appreciate the comments of the two anonymous reviewers.

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References

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1 Department for Trade and Industry Fairness For All: A New Commission for Equality and Human Rights (Cm 6185, 2004) paras 1.14–1.17.

2 In relation to Scotland the Commission's remit extends only to enforcing equality law: Equality Act 2006, ss 1, 8–9.

3 Ibid, s 11.

4 Ibid, s 12.

5 Ibid, ss 13–15.

6 Ibid, s 16.

7 Ibid, s 17.

8 Ibid, ss 20–24.

9 Ibid, ss 28–29.

10 Ibid, s 30.

11 Ibid, ss 31–32.

12 Trevor Phillips Speech (Department for Children, Schools and Families and Department for Innovation, Universities and Skills Joint Research Conference 2007, 16 November 2007), available at http://webarchive.nationalarchives.gov.uk/20080821115857/dcsf.gov.uk/research/data/general/trevor%20phillips%20keynote%20speech.doc, accessed 31 December 2018; EHRC Business Plan 2008/9 (EHRC, 2008) p 4.

13 J Squires ‘Is the EHRC working? (The Guardian, 21 July 2009), available at https://www.theguardian.com/commentisfree/libertycentral/2009/jul/21/equality-human-rights-commission, accessed 31 December 2018; 1990 Trust ‘Our rights, our future’ (1990 Trust, 2005); Choudhury, TThe Commission for Equality and Human Rights: designing the big tent’ (2006) 13 Maastricht Journal of European and Comparative Law 312322; O'Cinneide, CThe Commission for Equality and Human Rights: a new institution for new and uncertain times’ (2007) 36(2) Industrial Law Journal 141.

14 Joint Committee on Human Rights, Equality and Human Rights Commission (2009–10, HL 72, HC 183).

15 Mabbett, DAspirational legalism and the role of the Equality and Human Rights Commission in equality policy’ (2008) 79(1) The Political Quarterly 45; Joint Committee on Human Rights, above n 14.

16 Comptroller and Auditor General Equality and Human Rights Commission Annual Report and Accounts 2006–08 (HC 2008–09, 632); Committee of Public Accounts Equality and Human Rights Commission (HC 2009–10, 124).

17 K Hampton ‘The wrong leadership’ (The Guardian, 2009), available at https://www.theguardian.com/commentisfree/2009/jul/20/equalities-and-human-rights-commission.

18 N Crowther ‘Bridging the divide – matters to be taken into account regarding the integration of the functions of national equality bodies and national human rights institutions’ (October 2013), available at https://www.ucl.ac.uk/laws/sites/laws/files/btd-britain-study.pdf; Pegram, T The Equality and Human Rights Commission: Challenges and Opportunities (AHRC, 2011) p 20.

19 Tonkiss, KContesting human rights through institutional reform: the case of the UK Equality and Human Rights Commission’ (2016) 20(4) The International Journal of Human Rights 491.

20 HM Government Building a Fairer Britain: Reform of the Equality and Human Rights Commission (HM Government, 2011).

21 HM Government Building a Fairer Britain: Reform of the Equality and Human Rights Commission – Response to the Consultation (HM Government, 2012) p 15; EHRC Strategic Plan 2012–15 (TSO, 2012) p 13.

22 Crowther, above n 18, at 16; EHRC Business Plan 2018/19 (EHRC, 2018) p 38; Business Plan 2008/9, above n 12, at p 32.

23 Strategic Plan 2012–15, above n 21, pp 8, 11.

24 D Isaac ‘Prioritising our legal work’ (EHRC, 12 April 2017), available at https://www.equalityhumanrights.com/en/our-work/blogs/prioritising-our-legal-work; D Isaac ‘10 years on: the fight is far from over’ (EHRC, 2 October 2017), available at https://www.equalityhumanrights.com/en/our-work/blogs/10-years-fight-far-over.

25 For example literature on the workings of the Human Rights Act 1998, ss 3 and 4 and the Equality Act 2010, s 149, see Kavanagh, A Constitutional Review under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009); A Young ‘Is dialogue working under the Human Rights Act 1998?’ [2011] Public Law 773; C Chandrachud ‘Reconfiguring the discourse on political responses to declarations of incompatibility’ [2014] Public Law 624; Fredman, SThe public sector equality duty’ (2011) 40 Industrial Law Journal 405.

26 With the notable exceptions of O'Cinneide's work on the EHRC and O'Brien's work on ombudsmen, which are referred to throughout the paper. Saggar has also published work on the EHRC but this focused on equality and economic regulation, whereas the present paper focuses more broadly on equality and human rights in social regulation: Saggar, SRegulation, equality and the public interest’ (2008) 79(1) The Political Quarterly 82.

27 Hancher, L and Moran, MOrganizing regulatory space’ in Hancher, L and Moran, M (eds) Capitalism, Culture, and Economic Regulation (Oxford: Oxford University Press, 1989) p 277.

28 Scott, CAnalysing regulatory space: fragmented resources and institutional design’ [2001] Public Law 329 at 332.

29 Ibid, at 330.

30 Hancher and Moran, above n 27, p 277.

31 Scott, above n 28, at 330.

32 Freeman, J and Rossi, JAgency coordination in shared regulatory space’ (2012) 125(5) Harvard Law Review 1131 at 1143.

33 Scott, above n 28, at 330–331.

34 Wilson, JQ and Rachal, PCan the government regulate itself?’ (1977) 46 Public Interest 3.

35 Hood, C and others Regulation inside Government (Oxford: Oxford University Press, 1999).

36 For instance it was utilised in relation to the regulation of accountants, telecommunications and utilities: Young, JOutlining regulatory space: agenda issues at the FASB’ (1994) 19(1) Accounting Organisations and Society 83; Hall, C, Hood, C and Scott, C Telecommunications Regulation: Culture, Chaos and Interdependence Inside the Regulatory Process (Abingdon: Routledge, 1999); Prosser, TTheorising utility regulation’ (1999) 62(2) Modern Law Review 196.

37 Scott, above n 28; Freeman and Rossi, above n 32.

38 For example see Sunstein, C After the Rights Revolution: Reconceiving the Regulatory State (Cambridge, Ma: Harvard University Press, 1993); Prosser, T The Regulatory Enterprise: Government, Regulation, and Legitimacy (Oxford: Oxford University Press, 2010).

39 Vincent-Jones, PThe regulation of contractualisation in quasi-markets for public services’ [1999] Public Law 304; Kaye, J and others Governing Biobanks: Understanding the Interplay between Law and Practice (Oxford: Hart, 2012).

40 Hunt, PConfiguring the UN human rights system in the “era of implementation”: mainland and archipelago’ (2017) 39 Human Rights Quarterly 489 at 495–501.

41 Glover, JMThe structural role of private enforcement mechanisms in public law’ (2012) 53 William and Mary Law Review 1137 at 1153.

42 Burbank, SB, Farhang, S and Kritzer, HMPrivate enforcement’ (2013) 17(3) Lewis & Clark Law Review 637 at 663–664.

43 Bilchitz, D Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (Oxford: Oxford University Press, 2007) pp 120128; King, J Judging Social Rights (Cambridge: Cambridge University Press, 2012) pp 6163.

44 Yeung, KPrivatizing competition regulation’ (1998) 18 Oxford Journal of Legal Studies 581 at 590.

45 Ghaiden v Godin-Mendoza [2004] UKHL 30.

46 Kumar, CRNational human rights institutions: good governance perspectives on institutionalization of human rights’ (2003) 19 American University International Law Review 259 at 295.

47 Marks, SHuman rights and root causes’ (2011) 74(1) Modern Law Review 57. This can be seen in Bellinger, where the House of Lords refused to extend marriage to transsexuals as it would represent a major change in the law, with far-reaching ramifications (Bellinger v Bellinger [2003] UKHL 21 at [34]–[40]).

48 Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) paras 37–38.

49 Lustgarten, LRacial inequality and the limits of the law’ (1986) 49(1) Modern Law Review 68 at 73–74; O'Brien, NOmbudsmen and social rights adjudication’ [2009] Public Law 466 at 470; Fredman, S Discrimination Law (Oxford: Oxford University Press, 2nd edn, 2011) p 289.

50 McCann, M Taking Reform Seriously: Perspectives on Public Interest Liberalism (Ithaca: Cornell University Press, 1986) p 226; Rosenberg, G The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991) p 16. The problematic nature of court monitoring was recognised by the House of Lords in Re S where their Lordships overturned a decision of the Court of Appeal which created a role of continued oversight for courts of local authority care plans under the Children Act 1989. Lord Nicholls argued that in addition to departing substantially from a fundamental feature of the Act and thus crossing the boundary between interpretation and amendment, the oversight role for courts also created important practical repercussions for the local authorities which the court was not equipped to evaluate (Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10 at [40]–[43]).

51 Lustgarten, above n 49, at 72; O'Cinneide, CThe catalytic potential of equality and human rights commissions’ (2016) 24(1) Journal of Poverty and Social Justice 7 at 8.

52 T Hickman ‘Public law's disgrace’ (UK Constitutional Law Association, 9 February 2017), available at https://ukconstitutionallaw.org/2017/02/09/tom-hickman-public-laws-disgrace/; Brinks, D and Gauri, VThe law's majestic equality? The distributive impact of judicializing social and economic rights’ (2014) 12(2) Perspectives on Politics 375.

53 In some instances of human rights infringements, there may be an individual/organisation at fault but they are not performing a public function under the Human Rights Act 1998, s 6, so proceedings cannot be commenced against them under s 7: Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and Another [2003] UKHL 37; YL v Birmingham City Council and Others [2007] UKHL 27.

54 Fredman, above n 49, pp 285–286.

55 Al-Adsani v Government of Kuwait (1996) 107 ILR 536.

56 Rosenberg, above n 50; Lustgarten, above n 49, at 77.

57 Fredman, S Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008) ch 5; Hickman, above n 52; Boyle, K and Hughes, EIdentifying routes to remedy for violations of economic, social and cultural rights’ (2017) 22 The International Journal of Human Rights 43.

58 Health and Social Care Act 2008, s 4(1)(d).

59 O'Brien, above n 49, at 468. Although it should be noted that ombudsmen are not without criticism (for example see Hood and others, above n 35, pp 89–90).

60 O'Brien, above n 49, at 470.

61 PHSO ‘Failure to provide appropriate care for a cancer patient who suffered a major fit and died’ (September 2015), available at https://www.ombudsman.org.uk/about-us/how-our-casework-makes-difference/case-summaries/1079.

62 Care and Social Services Inspectorate Wales and Health Inspectorate Wales ‘Deprivation of Liberty Safeguards: Annual Monitoring Report for Health and Social Care 2015–16’ (CSSIW and HIW, 2016).

63 Care Quality Commission ‘Human rights approach for our regulation of health and social care services’ (CQC, 2014) pp 14–15.

64 Office for Public Management ‘The role and experience of inspectorates, regulators and complaints-handling bodies in promoting human rights standards in public services’ (EHRC, 2009) at 21.

65 Ibid, p 33.

66 Ibid.

67 Ibid, p 58.

68 The Commission could also use some of its other powers here such as investigations (although inquiries are much wider and therefore likely to prove more cost effective) and providing information (which often follows monitoring and inquiries).

69 EHRC Strategic Plan 2016–19 (EHRC, 2016) p 5.

70 EHRC Is Britain Fairer? The State of Equality and Human Rights 2015 (EHRC, 2015).

71 EHRC Hidden in Plain Sight: Inquiry into Disability-related Harassment (EHRC, 2011).

72 EHRC ‘Healing the divisions: A positive vision for equality and human rights in Britain’ (EHRC, 2017).

73 EHRC An Inquiry into Fairness, Transparency and Diversity in FTSE 350 Board Appointments (EHRC, 2016). This can also be seen in the Commission's investigation into the Metropolitan Police: EHRC, ‘Section 20 investigation into the Metropolitan Police Service’ (EHRC, 2016).

74 EHRC ‘Phase 2 consultation response on our Strategic Plan 2012–15’ (EHRC, 2012) at 14.

75 S Alkire and others ‘Developing the equality measurement framework: selecting the indicators’ (EHRC, 2009); H Holder, T Tsang and P Vizard ‘Developing the children's measurement framework: selecting the indicators’ (EHRC, 2011); A Wigfield and R Turner ‘Good relations measurement framework’ (EHRC, 2010); J Candler and others ‘Human rights measurement framework: prototype panels, indicator set and evidence base’ (EHRC, 2011).

76 EHRC ‘Measurement framework for equality and human rights’ (EHRC, 2017) at 22.

77 Ibid, at 27–29.

78 EHRC Inquiry into Recruitment and Employment in the Meat and Poultry Processing Sector: Report of the Findings and Recommendations (EHRC, 2010); EHRC Close to Home: An Inquiry into Older People and Human Rights in Home Care (EHRC, 2011).

79 EHRC ‘Strategic plan revision for 2015/16’ (EHRC, 2015) at 6.

80 EHRC Preventing Deaths in Detention of Adults with Mental Health Conditions: An Inquiry by the Equality and Human Rights Commission (EHRC, 2015).

81 Spencer, S and Harvey, CContext, institution or accountability? Exploring the factors that shape the performance of national human rights and equality bodies’ (2014) 42(1) Policy & Politics 89 at 102.

82 Freeman and Rossi, above n 32, at 1182.

83 Kumar, above n 46, at 295; EHRC ‘Can you help us to help others?’ (EHRC, 2018).

84 A strategic litigation approach was a significant tool for the EHRC's predecessors: O'Cinneide, above n 13, at 149–150.

85 Stoker, GGovernance as theory: five propositions’ (1998) 50(155) International Social Science Journal 17 at 22; Black, JDecentring regulation: understanding the role of regulation and self-regulation in a “post-regulatory” world’ (2001) 54(1) Current Legal Problems 103 at 145.

86 Alarie, B and Green, AInterventions at the Supreme Court of Canada: accuracy, affiliation, and acceptance’ (2010) 48 Osgoode Hall Law Journal 381 at 381.

87 Baroness Hale of RichmondWho guards the guardians?’ (2014) 3(1) Cambridge Journal of International and Comparative Law 100 at 110.

88 EHRC Strategic Plan 2012–15, above n 21, p 8; ‘Phase 2 consultation response on our Strategic Plan 2012–15’, above n 74, at 5. This was taken further in 2015 when the Commission adopted a strategic litigation policy: EHRC The Equality and Human Rights Commission's Strategic Litigation Policy (EHRC, 2015).

89 EHRC ‘Business plan 2016/17’ (EHRC, 2016) at 16–17.

90 It should be noted that this is a trend and not a rule and that there are examples of cases that do not conform to this trend, such as J, where the Court of Appeal gave great weight to the EHRC's arguments (R (J) v Worcestershire County Council (Equality and Human Rights Commission Intervening) [2014] EWCA Civ 1518).

91 Baroness Hale of Richmond, above n 87, at 106.

92 Slack and Others v Cumbria County Council (Equality and Human Rights Commission, intervening) [2009] EWCA Civ 293 at [20].

93 R (Aspinall) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2014] EWHC 4134 (Admin), paras 119–122. This can also be seen in H v Commissioner of Police of the Metropolis (Liberty and Another intervening) [2013] EWCA Civ 69 at [42].

94 R (Smith) v Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission Intervening) [2011] 1 AC 1 at [223].

95 Isaac, above n 24; EHRC ‘Legal Support Project: helping people to get legal assistance’ (2017), available at https://www.equalityhumanrights.com/en/legal-casework/legal-support-project-helping-people-get-legal-assistance.

96 Scott, CAccountability in the regulatory state’ (2000) 27(1) Journal of Law and Society 38 at 52.

97 Lenoble, J and Maesschalck, MRenewing the theory of public interest: the quest for a reflexive and learning-based approach to governance’ in De Schutter, O and Lenoble, J (eds) Reflexive Governance: Redefining the Public Interest in a Pluralistic World (Oxford: Hart, 2010) p 10.

98 C Scott ‘Reflexive governance, regulation and meta-regulation: control or learning? in De Schutter and Lenoble, above n 97, p 47.

99 Lenoble and Maesschalck, above n 97, p 8.

100 Vincent-Jones, PEmbedding economic relationships through social learning? The limits of patient and public involvement in healthcare governance in England’ (2011) 38(2) Journal of Law and Society 215 at 221.

101 Lenoble and Maesschalck, above n 97, pp 11–12.

102 Lenoble and Maesschalck, above n 97, p 13.

103 Sabel, CF and Cohen, JDirectly-deliberative polyarchy’ (1997) 3 European Law Journal 313; Sabel, CF and Zeitlin, JLearning from difference: the new architecture of experimentalist governance in the EU’ (2008) 14 European Law Journal 271.

104 Argyris, C and Schön, D Theory in Practice: Increasing Professional Effectiveness (Hoboken: Jossey Bass, 1974); Argyris, C and Schön, D Organizational Learning: A Theory of Action Perspective (Boston: Addison Wesley, 1978); Argyris, C Knowledge for Action: A Guide to Overcoming Barriers to Organizational Change (Hoboken: Jossey Bass, 1993).

105 Lenoble and Maesschalck, above n 97, pp 19–20.

106 EHRC Our Strategic Plan 2009–2012 (EHRC, 2009) p 22; Strategic Plan 2012–15, above n 21, p 12.

107 EHRC ‘Strategic plan revision for 2015/16’, above n 79, at 10.

108 EHRC ‘Business plan 2014/15’ (EHRC, 2014) at 19.

109 EHRC Human Rights in Action: Case studies from Regulators, Inspectorates and Ombudsmen (EHRC, 2014).

110 Our Strategic Plan 2009–2012, above n 106, p 64; EHRC ‘Business plan 2012/13’ (EHRC, 2012) at 12; Ofsted ‘School inspection handbook’ (Ofsted, 2017).

111 EHRC and CQC ‘Memorandum of Understanding’ (EHRC).

112 CQC and EHRC, ‘Equality and human rights in the essential standards of quality and safety: Equality and human rights in outcomes’.

113 EHRC ‘New guidance for inspectors and assessors’ (EHRC, 28 April 2014); EHRC, ‘Commission funds new equality and human rights training for Care Quality Commission (EHRC, 5 March 2015).

114 This number was obtained by undertaking a Westlaw search and excluding disability/special educational needs cases (a special category).

The author is extremely grateful to Jonathan Doak, Helen Hall, Ralph Henham, Paul Hunt, Tom Lewis, Tonia Novitz, Tony Prosser and Mary Seneviratne for their insightful comments on previous drafts. A previous version of this paper was presented at a workshop entitled ‘Human Rights after Brexit: The Future of Human Rights in the UK’ on 23 March 2017 at the Lauterpacht Centre for International Law, Cambridge. The author was aided by the discussion and comments he received on his paper from all the participants, but particularly those from Veronika Fikfak, Stephanie Palmer and Alison Young. Special thanks are also due to the person that introduced me to theories of reflexive governance, which has immeasurably benefited the paper. Finally, I greatly appreciate the comments of the two anonymous reviewers.

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