Parliamentary briefing: Public Bodies Bill Committee stage, House of Commons September 2011
The Public Bodies Bill will give allow ministers to amend the Equality and Human Rights Commission’s constitutional arrangements, funding arrangements and functions through secondary legislation. The Commission has recently responded to the government’s consultation on our reform, setting out what legislative and nonlegislative measures would help us fulfil our role more effectively. We are continuing positive discussions with the government on our proposals. Should the Commission be reformed through regulations passed under the Public Bodies Bill, these regulations should be subject to the super affirmative procedure. This would require ministers to have regard to parliamentary representations on the draft orders and therefore provide a stronger guarantee of the Commission’s independence and constitutional role.
1.
Constitutional and democratic concerns with the Public Bodies Bill The Public Bodies Bill gives ministers broad powers to abolish or merge a large number of public bodies or to modify their constitutional arrangements, funding arrangements or functions. The Commission notes the concerns of prominent constitutional experts and organisations that the proposed mechanisms for undertaking these reforms by ministerial order raise significant constitutional concerns1. These concerns have been reinforced by three parliamentary committees: the House of Lords Constitutional Select Committee, the House of Lords Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights. In a second report on the Bill, the Delegated Powers and Regulatory Reform Committee2 made clear that its concerns have not been met by the government’s concessions during the Lords stages, including introducing the ‘enhanced’ affirmative procedure for any subsequent regulations (clause 11). The Commission shares these committees’ concerns. We agree that the government has provided neither sufficient evidence for why the normal parliamentary procedure of primary legislation should not be used, nor adequate safeguards in the Bill to ensure public and parliamentary scrutiny of its proposals. In relation to the Equality and Human Rights Commission, the powers, functions and independence of the Commission, as set out in the For example, Liberty’s Lords second reading briefing states: ‘Secondary legislation, which is not subject to a full and proper parliamentary debate, should not amend primary legislation in relation to anything other than the most minor details. Allowing a Minister to make an order abolishing or fundamentally restructuring bodies create by established democratic process, gives an unacceptably broad power to the executive.’ 2 ‘While it is important for the House to consider the right procedure for orders under the Bill, the Committee notes for the avoidance of doubt that extended procedural requirements do not remove the Committee's fundamental concerns about the excessively broad delegations of powers in the Bill.’ Delegated Powers and Regulatory Reform Committee 1
Eleventh Report, March 2011, http://www.publications.parliament.uk/pa/ld201011/ldselect/lddelreg/108/10802.htm
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Equality Act 2006, were the subject of extensive parliamentary debate and scrutiny. Therefore the same process should be followed in relation to amending the Act. Secondly, the Commission has a distinctive constitutional role in Britain’s democratic system in holding the government to account. This was highlighted by the Joint Committee on Human Rights (JCHR) prior to the Commission’s establishment3. The JCHR said that the Commission has a similar role constitutionally to the Electoral Commission, the National Audit Office and the Parliamentary Commissioner for Administration4. Therefore it is entirely appropriate that parliament would have a full role in debating any proposed amendments to the Commission’s powers and functions. Third, as a United Nations-accredited National Human Rights Institution (NHRI), the Commission requires independence from government in relation to its structures, functions and the exercise of its powers as a requirement of the UN’s Paris Principles for NHRIs5. If ministers were able to modify the powers, functions and constitution of the Commission by ministerial order, this may raise questions about independence and affect our ability to maintain ‘A’ status as a NHRI. The Commission might also be perceived as less likely to take legal action governments. In June 2011 Rosslyn Noonan, Chair of the United Nations International Coordinating Committee (ICC), wrote to the Home Secretary stating: ‘Given the particular constitutional place of national human rights institutions in the architecture of the State, it is critical that any amendment to their mandate, structure, powers and functions be carried out through a parliamentary process which is open, transparent and with opportunity for public submissions. 3
JCHR, Eleventh report of session 2003-04, 2 April 2004, and sixteenth report session 2003-04, 21 July 2004. 4 Ibid eleventh report paragraphs 113-143 an sixteenth report, paragraphs 44-52. 5 http://www2.ohchr.org/english/law/parisprinciples.htm
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Secondary legislation does not meet those criteria and places undue power over the EHRC in the hands of the Executive, whose compliance with human rights standards the EHRC is required to monitor.’ Recommendation The Equality and Human Rights Commission recommends the government introduce the super affirmative procedure6 for regulations passed under the Public Bodies Bill. This would be a stronger guarantee of effective parliamentary scrutiny, for example, requiring a response from the minister to parliamentarians’ representations.
2.
Recent consultation on reform of the Commission
A government consultation on reform of the Commission closed on 15 June 2011. The Commission (as well as many stakeholders) responded to this consultation7, drawing on our experience of our first three years of operation to explain the legislative and non-legislative measures that would help us fulfil our role more effectively. The Commission is now in discussions with the government on the suggestions in the government consultation and our own proposals. We are confident that we will reach a common position on the future of the Commission and any changes that are required to our statutory basis.
The Commission's proposals The Commission has suggested some relatively modest changes in the statute. These would make the Commission's operations less expensive to the public, less intrusive to private bodies and public authorities, less
6
As introduced by clause 16 of the Legislative and Regulatory Reform Act 2006. Full response can be read at: http://www.equalityhumanrights.com/about-us/vision-andmission/government-consultation-on-our-future/ 7
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cumbersome and bureaucratic in its regulatory mode, and more accountable to parliament. Support for victims of human rights breaches The Commission is currently prevented from giving legal support to individuals whose human rights may have been breached. This means we cannot do the single thing that would most effectively promote human rights for citizens across the UK: take cases on behalf of ordinary people faced with organisations which disrespect them and undermine their dignity, such as elderly or disabled people in care. The Commission's principal role at present has becomes largely promotional and quasi-political, a position which our board considers unsatisfactory. The Commission has had real success in promoting its equality remit using strategic cases, such as Sharon Coleman’s case in the European Court of Justice (establishing her right to be treated fairly in relation to her disabled child). Selecting and supporting strategic cases on the basis of human rights issues is likely to be equally successful. The UN ICC has recommended that the Commission’s powers in relation to its equality and human rights remit should be the same, as the current differences inhibit our ability to effectively fulfil our role as Britain's National Human Rights Institution. Simpler, swifter enforcement The Commission has extensive powers of investigation and inquiry, which have been used more effectively with time. These powers are, however, extremely expensive and therefore have to be used relatively rarely. They are also intrusive and difficult for those being investigated to engage with; and they encourage defensiveness rather than openness. The Commission's ability to use simple, effective methods, such as mystery shopping, which are open to charities and media organisations, Page 5 of 16
is inhibited by its status. We consider that through allowing a modest increase in our transparency powers, the Commission would decrease the cost of regulation and increase its effectiveness substantially. Power to charge for additional services The Equality Act 2006 gives the Commission powers to charge for information, advice and conciliation services. Extending this to allow the Commission to charge for other services would: • bring the Commission in line with other regulators and NHRIs, such as Danish Institute for Human Rights; • increase the Commission’s independence by ensuring it is not wholly reliant on central government funding; and • respond to the current economic climate and the limited government resources available. It is therefore prudent to consider amending the legislation to allow the Commission to levy fees for providing one-to-one advice to equality, diversity and human rights professionals; training resources, such as online toolkits and self-assessments; proprietary systems, for example, diversity monitoring software; and licensing programmes for independent advisers and equality auditors. Public accountability The Commission has been identifying ways in which it can achieve an optimal balance between independence, accountability and transparency. Similar constitutional bodies with a role in holding the government to account, such as the National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman, report directly to Parliament. Other regulators such as the Office of Fair Trading also report directly to parliament, with a status as non ministerial departments. Page 6 of 16
This model for the Commission has been endorsed by the chair of the UN ICC and has previously been recommended by the previous JCHR in three reports8. In a 2003 report9, the JCHR stated: ‘… the standard model of NDPB accountability is [not] a sufficiently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission).’ The Public Administration Committee has also emphasised the importance of parliamentary accountability and scrutiny of nondepartmental public bodies10. On 5 September 2011, the Commons Liaison Committee published a report, ‘Select committees and public appointments’11, which recommends enhanced parliamentary involvement in the appointment of the chair of the Equality and Human Rights Commission. The Commission would propose the following arrangements be considered to enhance its parliamentary accountability: • The Commission could report directly to parliament and, through predominantly elected Parliamentarians, to the public. • The Commission could have a statutory requirement to lay its business plan before Parliament.
8
Joint Committee On Human Rights - Sixth report session 2002-03, Eleventh report of session 200304, and Sixteenth report of session 2003-04: http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/156/15602.htm 9
Sixth report, 2002-03.
10
Public Administration Committee, Fifth report 7 January 2011, http://www.publications.parliament.uk/pa/cm201011/cmselect/cmpubadm/537/53702.htm Liaison Committee - First report ‘Select committees and public appointments’ http://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/1230/1230.pdf 11
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• Appointment of commissioners and the chief executive could be subject to Parliamentary ratification. • The Commission could formally report to and be held to account by one or more select committees. • The Commission's budget could be set by Parliament, following the arrangements, for example, of the Parliamentary and Health Service Ombudsman. This approach would have several benefits: • The Commission has a constitutional and democratic role to ensure government complies with its domestic and international equality and human rights obligations. Parliamentary accountability would provide the Commission with the appropriate independence from government to fulfil this role impartially. • It is likely that a more politically plural board would result, as appointments would no longer be made by the majority administration long term consistency of accountability arrangements would be established. To date, the Commission has had four different sponsor departments. A report from the Public Accounts Committee12 pointed to the changing sponsor arrangements during transition as a major difficulty in the Commission’s establishment. At any time, the Commission may yet be subject to a further reorganisation. It is important to note that in the United Kingdom the practice of reporting to Parliament is being effectively used by another NHRI. The Scottish Human Rights Commission, which has also been accredited with “A” status by the UN ICC, reports directly to (but remains independent from) the Scottish Parliament and has its budget set by the Scottish Parliament. This clearly indicates that a NHRI model involving direct 12
Public Accounts Committee - Fifteenth report, 2009/10, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmpubacc/124/12402.htm
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accountability to parliament is workable within the United Kingdom’s Parliamentary system. The Government’s proposals Governance In their consultation paper, the Government suggested several significant changes to the Commission’s governance arrangements, for example: - a statutory requirement for the Commission to lay its annual business plan before Parliament, and to give the Secretary of State a power over its form and timing; - a statutory requirement for Commission’s Chair and CEO to have regard to using public money efficiently and effectively; - to make explicit that the secretary of state may impose a financial sanction, where Commission can be shown to have mis-spent taxpayers’ money; and - to make clear that as a publicly funded body Commission is subject to Government public expenditure restrictions. These proposals are designed to respond to criticisms both of the Commission's own governance and financial management and of the various sponsor units' handling of the government's own responsibilities. The Commission’s takes this area very seriously, as it has proved to be an obstacle to our focussing attention on our real work. That is why the board has reconfigured the executive team and given its new chief executive, as a priority, the task of ensuring that the Commission does not repeat the errors of the past. We are eager to engage with Government in arriving at shared solutions, and reducing the amount of resource and energy applied to these matters to their proper level. We consider it important, therefore, that the Page 9 of 16
measures taken are proportionate to the real problems and that we do not use legislative solutions where practical and effective management are already proving sufficient. In addition, the Commission and other organisations expressed particular concerns about the impact of some of the government’s proposals on the Commission’s status as a National Human Rights Institution (NHRI), as recognised by the UN. The Chairperson of the UN’s International Coordinating Committee of NHRIs Rosslyn Noonan, in a recent letter the Home Secretary Theresa May, detailed the proposals in the government’s paper ‘which, if carried through, may also impinge on the Paris Principles required independence of the EHRC and, consequently, its ability to maintain its international status of ‘A’ accreditation’. This letter is in Annex 1. Powers and functions The government further proposed to remove several of the Commission’s powers and functions. For example, to: - repeal the Commission’s general duty (section 3 of the Equality Act 2006); - remodel section 8 of the Equality Act 2006 to restrict the Commission’s enforcement action to the Equality Act 2010; - remove the Commission’s good relations function; - repeal the Commission’s power to make provision for conciliation services; and - remove the Commission’s responsibility for providing a complaints handling service for disabled passengers. Many organisations have expressed concern that, in their totality, these proposals amount to a downgrading of the Commission and a narrowing Page 10 of 16
of our remit. The Women’s Resource Centre13 says: ‘This risks sending a message to the public, and public bodies, that equality and human rights is being taken less seriously as an issue by the current Government, or that people and organisations can do less in relation to equalities issues.’ In light of the concerns expressed about the government’s proposals as they stand, we are confident that the government will use its response to the consultation (expected in November 2011) to set out a positive direction for the Commission. Recommendation It is clear that any reforms to the statutory basis of the Equality and Human Rights Commission must be undertaken with view to the complex nature of our role as an equality regulator and National Human Rights Institution. The Commission is continuing discussions with the government on our reform and any legislative changes that are required, and we are hopeful that a consensus will be reached. About the Equality and Human Rights Commission The Equality and Human Rights Commission is an independent statutory body established under the Equality Act 2006. The Commission works to reduce inequality, eliminate discrimination, strengthen good relations, and promote and protect human rights. As such, the Commission is the designated independent body required by European Union Equality Directives to promote equal treatment without discrimination.14 The 13
http://www.wrc.org.uk/resources/briefings_and_consultations/current_consultations.aspx
14
Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, article 13 and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), article 20.
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Commission has also achieved ‘A’ status accreditation as a National Human Rights Institution (NHRI) on behalf of the UK, enabling us to participate in the United Nations Human Rights Council and to undertake monitoring of the UK’s human rights obligations15. The Equality and Human Rights Commission welcomes the opportunity to give evidence to the Commons Public Bill Committee. For more information on any of the points in this briefing, please contact Ellie Rose, head of parliamentary affairs, 020 3117 0411
[email protected]
‘Principles relating to the status and functioning of national institutions for protection and promotion of human rights’ Office for the United Nations High Commissioner for Human Rights, http://www2.ohchr.org/english/law/parisprinciples.htm 15
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Annex 1: Letter from Rosslyn Noonan, United Nations International Coordinating Committee (ICC), to the Home Secretary, Rt Hon Theresa May MP, and Justice Minister, Rt Hon Lord Tom McNally
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