Legal Strategy 2008/09 (Word)


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Legal Strategy 2008/09 (Word)

  1. 1. Legal strategy 2008–9 The Commission’s legal strategy has as its base: A. The Commission’s, vision, mission and corporate strategic priorities for 2008–9. B. The Commission’s statutory duties and powers and its work across the three nations. C. The structure of the Commission and the division of the Commission’s legal work into legal policy, enforcement and litigation and casework. The Commission’s vision and mission (see Annex A) The Commission’s Corporate Strategic Priorities for 2008–9: 1. Analyse, define and target key equality and human rights battlegrounds. 2. Change policy and improve organisational performance. 3. Engage and involve the public. 4. Develop new narratives and accounts, strengthen British human rights culture. 1
  2. 2. The Commission’s statutory duties and its main statutory powers relevant to the work of the Legal Directorate (see Annex B) The Commission was established under the Equality Act 2006 to work across the whole of Great Britain and to serve the three nations of England, Scotland and Wales; Schedule 1 to the Act explicitly reflects the devolution of powers to Scotland and Wales in the formal structure of the Commission. Before developing proposals for using its legal powers, the Commission must consider whether the proposed legal action could have a different impact in Scotland or Wales and/or whether a different approach in each nation is preferable or necessary. This test could result in the same issue being a higher or lower priority in one or more of the nations and/or a particular priority issue being tackled in different ways, using different legal powers in each of the nations. The Commission operates through four Directorates – Legal, Strategy, Communications and Corporate Management – with regular cross- Directorate working. Thus the Legal Directorate often works in collaboration with other directorates; for example, both Legal and Strategy Directorates are involved in the Commission’s international work and securing compliance with public sector equality duties, and Legal and Communications Directorates work together to support the helpline in providing advice to the public and identifying potential strategic cases. In addition, on 31 March 2008, the Commission announced over £10 million of grant-aid to voluntary organisations across the country, including £3.3 million to over 70 advice-giving organisations. This will considerably extend the reach of the Commission’s activities. The work of the Legal Directorate is divided on a functional basis into three constituent parts: • Legal Policy – monitoring and influencing legislative and policy developments relating to equality and human rights, developing codes and guidance, making submissions and working with 2
  3. 3. international organisations and treaty monitoring bodies, providing internal advice on the Commission’s policy positions. • Enforcement – conducting inquiries and investigations, enforcing public sector equality duties, enforcing provisions of the equality enactments, entering into non-discrimination agreements, intervening in existing proceedings and issuing legal proceedings, including judicial reviews, in the Commission’s name. • Litigation and Casework – providing legal advice and assistance for members of the general public and advisers, supporting strategic cases in tribunals and courts. Public Benefit Tool The public benefit tool offers a diagrammatic model for strategic analysis and decision-making. 3
  4. 4. 1. The Objectives of the proposed work need to come within the vision and mission of the Commission and its current strategic priorities and must be based on clearly defined desired outcomes. 2. The Impact of the work, that is, whom will it help and what difference will it make, involves three criteria. ‘Reach’ encompasses both breadth and depth, that is, the work should take account not only of the size of the group affected but the scale of the issue affecting that group. ‘Potential’ is concerned with context, including political context, and circumstances; the work should take account of the ‘cascading’ intensity of inequality or injustice and the opportunity for increased profile through a particular piece of work, which could attract media coverage and hence tackle widespread attitudes. ‘Sustainability’ of the outcome is the third essential element to be considered within Impact. 3. ‘Process and accountability’, involves questions about the technical effectiveness of a proposed project and the capacity of a particular organisation to deliver that work itself or in collaboration with others. On analysis, it may be decided, for example, that a piece of work could be supported but not directly undertaken or could be supported if it is undertaken in a way other than as first proposed. Proposed Legal Strategy for 2008–9 The proposed legal strategy has been developed in two sections: A. Criteria – for each of the separate areas of legal work; these criteria will be applied to determine whether, when and how the Commission might use its legal powers. B. Priorities – the legal and policy issues, the areas or sectors and the major discrimination and human rights concerns in relation to which the Commission expects to use its legal powers: the ‘key equalities and human rights battlegrounds’ targeted for legal action by the Commission during 2008–9. 4
  5. 5. Key Legal Issues for the Commission in 2008–9 During 2008–9 the Legal Directorate will consider all of the issues within its remit, and the detailed priorities for each of the equality strands and human rights are set out on pages 12–24. The following six key issues have been identified as overarching priorities for use of the Commission’s powers by the Legal Directorate in 2008–9: • Influencing government proposals for a Single Equality Bill to secure legislation that harmonises and strengthens protection and means of enforcement, reinforces and extends equality duties and establishes a robust legal framework for the achievement of equality. • Promoting a constitutional guarantee of equality: an endorsement by parliament of equality as a fundamental principle to which other procedures, rules and law would be subject and in accordance with which other laws should be interpreted by the courts and tribunals. • Securing proper implementation of EU equality law. • Exploring and challenging multiple/intersectional discrimination, which raises issues relating to more than one protected ground or which involves both discrimination and human rights issues. • Developing and expanding legal protection against discrimination on grounds of sexual orientation, religion or belief and age which for the first time are supported by a statutory commission and under untested new legislation, for example on gender reassignment. • Securing better understanding and protection of human rights – co-operating with the Scottish Commission for Human Rights; responding to proposals for a Bill of Rights, seeking to ensure that any Bill of Rights would extend and would not dilute or diminish human rights in Great Britain. 5
  6. 6. • Maximising the impact of the race, disability and gender equality duties across all functions of public authorities. Criteria The basic criterion for the Commission’s legal work is that the work will bring about positive change with maximum and lasting impact. In relation to proposed legal work, the Commission will consider the facts and relevant circumstances of a potential case or project, the statutory powers in Annex B (page 26) and the criteria (5), and will apply the Public Benefit Tool (page 3), in order to decide whether, how and by whom the Commission’s desired outcome can be achieved most effectively. The proposed criteria for work by each of the three divisions are the following: Legal Policy Through its legal policy work, drawing on outcomes from enforcement and litigation, the Commission monitors the effectiveness of equality and human rights laws and seeks to influence the development of future equality and human rights legislation and other laws or policies likely to have an impact on equality and human rights. Legal policy work includes advising the Commission on proposed policies and legislation for Great Britain, the three countries and at EU and international level, and responding for the Commission to relevant consultations or inquiries. It includes co-operating with the Scottish Commission for Human Rights, which has jurisdiction for devolved matters, the Northern Ireland Human Rights Commission and the Equality Commission for Northern Ireland, and contributing to the Commission’s submissions to international treaty monitoring bodies. Legal policy work also involves drafting statutory and non-statutory guidance and using the outcomes of litigation and enforcement to secure legislative and policy change. 6
  7. 7. Legal Policy Criteria: The Commission will consider undertaking legal policy work when such work comes within at least one of the following: • Would address significant disadvantage in respect of one or more of the protected grounds and/or major abuse of human rights. • Would have a significant impact on a sector with a poor equality or human rights record, or a sector with potential to have major impact on equality or human rights. • Would assist the development of positive policies in the public and private sectors promoting equality on grounds of sexual orientation, religion or belief, age or gender identity. • Involves issues of multiple/intersectional discrimination or both equality and human rights issues. • Would strengthen and extend the application and impact of positive equality duties. • By issuing guidance or otherwise, would secure greater understanding of rights and obligations under the equality enactments and/or human rights law. • Would expand the protections under domestic, European and international equality and human rights law. • Would assist the UK to meet its obligations under European and international equality and human rights instruments. • Would support other areas of the Commission’s work. Enforcement The Commission’s wide enforcement powers enable it to probe, expose, challenge and secure change across or within organisations and institutions in the public and private sectors in respect of one, or more than one, equality strand and/or human rights. 7
  8. 8. Inquiries enable the Commission to gather evidence to raise the public profile of equality or human rights issues within one sector or of a particular equality or human rights issue that is replicated across a range of organisations or more than one sector, and to make recommendations to bring about change. Investigations based on a suspicion of unlawful discrimination enable the Commission to probe relevant practices of an organisation and, where the Commission’s suspicions are validated, to serve a notice requiring the discrimination to cease, including compliance with an action plan for this purpose. Assessments enable the Commission to scrutinise compliance by particular public authorities with the race, disability or gender equality general and specific duties, obtaining evidence for further enforcement action to secure compliance. The Commission’s power to require any person to provide written or oral evidence or relevant documents gives added force to its inquiry, investigation or assessment powers. As detailed under the statutory powers in Annex B, the Commission may also: • Intervene in ongoing litigation, bringing the Commission’s informed expertise to assist the courts on important matters of judicial interpretation. • Bring own name judicial review proceedings. • Serve a compliance notice for breach of public sector equality duties. • Take proceedings in relation to discriminatory advertisements, pressure or instructions to discriminate. • Apply for injunctions/interdicts to restrain/prohibit unlawful acts. • Enter into a binding agreement in lieu of an investigation, an unlawful act notice or a compliance notice. 8
  9. 9. There are important advantages to enforcement action in the Commission’s name, where such action is appropriate and resource- effective. The Commission has considerable control over the process and the eventual outcomes, and there is no onus on individual claimants. Enforcement by the Commission can have a broad impact. The available remedies provide scope for eliminating discrimination at a systemic level, and enforcement action in relation to one organisation can open the door to sector-wide work on equality or human rights. Criteria for legal enforcement The Commission will consider using its enforcement powers when the proposed enforcement action would come within at least one of the following: • Would have a positive public impact – improve understanding and change perceptions and attitudes. • Would force the issue onto the agenda of the body/person with power to implement change. • Would make a difference – in terms of the content or application of the law or the policies and practices of an organisation, institution or sector. • Would eliminate or significantly reduce systemic and/or entrenched disadvantage. • Would test the extent of compliance with public sector equality duties. • Would support other areas of the Commission’s work. • Having regard to relevant circumstances and the Commission’s priorities, the selected form of enforcement is the most appropriate of the Commission’s legal tools to achieve one of the above. Strategic litigation and casework 9
  10. 10. Through strategic litigation the Commission is able to achieve improvements to legal protection against discrimination. Successful litigation can clarify the law or achieve changes to law or policy, which can then be used as levers for wider social or legal change. Non- monetary terms of settlement can also secure major changes that will have wider impact. The Commission's policy initiatives, strategic priorities, campaigns and its monitoring duties can also be supported or assisted by test and illustrative cases. As stated in Annex B, the Commission has powers to assist an individual who alleges that s/he is a victim of unlawful discrimination or harassment and who is or may become a party to legal proceedings under one or more of the equality enactments. Legal assistance may take the form of legal advice, representation, facilities for the settlement of a dispute or any other form of assistance. It could include an application for judicial review by the Commission where the issue is the unlawful treatment of a particular individual or group. The Commission will work with its external partners, including trade unions, voluntary sector organisations, CABx and RECs, for example to highlight cases that come within the following criteria or to raise awareness of legal issues. Recognising that its resources, compared with the volume of discrimination proceedings, are such that it can fully support only a small proportion of the cases for which its assistance is sought, the Commission has developed criteria to identify potential strategic litigation cases. Strategic litigation criteria The Commission will consider supporting a case if, applying the above Public Benefit Tool, the case can be shown to meet one or more of the following criteria and also comes within at least one of the priorities for the Commission’s legal work (see pages 12–24): • Clarifies an important point of law: definitions of key concepts, scope of the law and significant gaps, remedies and sanctions (in Scotland and in England and Wales). 10
  11. 11. • Is a cost-effective method of achieving a desired outcome, taking into account the likelihood of success. • Will have a significant impact on a particular sector. • Challenges a policy or practice that is known to cause significant disadvantage based on the number of people affected or the scale of the disadvantage or injury for the people affected. • Challenges multiple/intersectional discrimination. • Will extend or strengthen protections and rights under one or more of the equality enactments and, where it also applies, human rights law. • Tests compliance with one or more of the public sector equality duties and, where it is also relevant, the duty on public authorities under s.6 HRA. • Absence of other sources of legal support, taking into account the particular circumstances of the individual and the above criteria. Priorities Background The priorities identified for the Commission’s legal work in 2008-9 have been developed by reference to various sources including the Equalities Review (published February 2007) and the Annex to the Sixth Report of the Joint Committee on Human Rights Session 2007-8, ‘State of Human Rights in the UK’ (published February 2008). The Commission has also drawn on other government reports, the work of the CRE, DRC and EOC and the reports and experience of stakeholders working in the fields of discrimination and human rights. The Equalities Review stressed, as a pre-requisite to securing greater equality, that there needs to be improved collection and monitoring of data concerning the life experiences of groups in society. The Equalities Review noted with concern major gaps in data relating to certain equality strands and to areas in which inequality in access or outcomes is, or 11
  12. 12. may be, occurring. There are parallel gaps in data on important human rights matters. It is hoped that with more comprehensive data in future years the Commission will be better able to target the use of its legal powers to areas of discrimination and disadvantage and human rights abuse where action is most needed. The Commission will identify the statistical and other data it needs for effective performance of its legal functions and will draw on its own research and the research by external partners for this purpose. Additionally, the Commission will seek to collect relevant statistical and other data to use as evidence to support individual cases, enforcement action and legal policy work. A main aim of the Commission is to reduce inequality. The Commission is aware that certain of the equality enactments create symmetrical rights against discrimination, for example, the RRA, SDA and Employment Equality (Age) Regulations, under which protection applies to people of every race/ethnicity/nationality, to men and women, and to people of every age. In prioritising its legal work the Commission will recognise the current inequality realities in British society. In practice this will mean that the Commission will give priority to issues which will have the greater impact in overcoming historic patterns of disadvantage. The following priorities have been developed for each of the equality strands, although in a number of instances the same or similar priorities are recommended for more than one strand. A key issue for the Commission in 2008–9, as stated above, is to challenge multiple/intersectional discrimination, and therefore, wherever appropriate, the Commission will apply its legal policy, enforcement or litigation powers on a multiple or cross-strand basis. Where for one or more equality strands and for human rights there are similar priority issues, the Commission will also normally adopt a joint equality-and- human rights approach to the use of its powers, for example by using our judicial review powers. Some priority issues for disability, gender, gender identity and race may be most effectively tackled as part of the enforcement of the public sector equality duties, for which broad priorities are listed separately on pages 21–22. It should be noted that no attempt has been made at this stage to relate particular priorities to the different forms of legal action described above. Thus, for example, it could be through legal policy work, enforcement or strategic litigation that the Commission would seek to challenge racial profiling by the police or discrimination on grounds of disability in access 12
  13. 13. to pre-school and post-16 education. It could also be that the Commission will focus on different priorities and/or use its legal powers in relation to a particular priority in different ways in England, Scotland and Wales. It is important for the Commission to be able to identify the most appropriate methods for tackling these priority issues as opportunities for doing so arise, since on each occasion the Commission will need to take into account a number of factors including the above criteria, the particular circumstances and the Public Benefit Tool. Finally, as part of the work undertaken by the Commission will depend on the external opportunities presented to it (for example opportunities to litigate and/or to influence legislation), it is not suggested that comprehensive work concerning all of priorities will be undertaken in 2008–9; rather the following are those areas of work which the Commission will prioritise as against others. Detailed priorities Age Justification of direct discrimination: • The test for legitimate aim. • The test for proportionate/appropriate and necessary. • The relationship to justification for indirect discrimination. • Statutory exceptions; • Do exceptions, such as age-based minimum wage rates or benefits based on length of service, go beyond the justification test in Article 6, EC Directive 2000/78/EC? • The meaning of ‘business need’ for purposes of length of service exception. • Exclusion of payments under state schemes under Art. 3(3) EC Directive 2000/78/EC. Scope: • Extent of ‘vocational training’ and ‘further education’ for purposes of the Age Regulations. • Identifying real or hypothetical comparators. 13
  14. 14. • Lack of protection for age discrimination on the basis of ‘association’ (awaiting ECJ judgment in Coleman v Attridge Law). Employment: • Forced retirement under Reg. 30 (awaiting outcome of Heyday in the ECJ), or for persons not within the statutory retirement scheme, for example, police officers or office holders- justification test. • Young people – discrimination in recruitment, terms and conditions. Positive action: • Promoting positive action for younger people and older people as permitted under the Age Regulations. • Promoting amending regulations to prohibit discriminatory advertisements, pressure or instructions to discriminate, with powers for the Commission to take enforcement action. • Promoting protection against age discrimination (for persons of all ages) to be extended to all fields outside employment which now form part of legislation prohibiting discrimination on other grounds – without losing justifiable age-related benefits. Promoting a public sector age equality duty Disability UK ratification of the UN Convention on the Rights of Persons with Disabilities. Progress towards definition of disability based on the social model of disability. Protection against discrimination to apply to association (await ECJ judgment in Coleman v Attridge Law following favourable opinion of the Advocate General) and to perception. Discrimination outside the field of employment: • Duty to make reasonable adjustments. • Access to the built and natural environment. 14
  15. 15. Education: • Overlap/gaps between rights and remedies for SEN/additional support for learning under education law and under the DDA. • Bullying and harassment. • Differential achievement rates. • Access to pre-school, post-16 education and LEA/local authority related services. • General qualification bodies. • Extent of reasonable adjustment duty. Goods, facilities and services: • Failures to make anticipatory adjustments. • Discrimination in access to health and childcare services. • Insurance and other financial products. Housing: • Justification. • Reasonable adjustments. • Accessible housing – Lifetime Homes. Public functions: • Justification test and trigger for duty to make reasonable adjustments. • Planning and building control. • Social care. • Health services, including end of life issues. • Criminal justice; • Prisons and other places of detention. • Police powers: arrest, interrogation, detention. • Mental health; • Action in response to the judgment in Bournewood – continuing illegal detentions. • Access to justice. 15
  16. 16. Transport: • Outstanding gaps in legal protection. • Duty to make anticipatory reasonable adjustments. • Regulations for taxis. Employment discrimination: • Persistent disadvantage and discrimination in employment: direct and disability-related discrimination and failure to comply with duty to make reasonable adjustments. • Particular disadvantage of young disabled people. • Access to suitable vocational training and support to enter/re-enter employment. • Harassment. Mental health: • Access to justice. • Social security and health. Criminal law: • Scope, application and effectiveness of higher tariff for offences motivated by disability hostility; promoting similar law in Scotland. • Mental health as issue for defendants. Disability Equality Duty (see below – Public Sector Equality Duties) • Using the duty to leverage increased support for independent living and improvements in social care. • Promoting extension of protection against discrimination to air travel and ferries/shipping. Gender Discrimination outside the field of employment: Goods, facilities and services: • Health and mental health services. • Support services for victims of domestic violence. Education: • Differential rates of achievement, exclusion, subject choices. 16
  17. 17. • Sexual harassment of pupils/students. Public functions: • Protection and support for women as victims of sexual violence. • Treatment of women in prisons and other places of detention. • Immigration and asylum; • Gender-related factors in applications for asylum, decisions on leave to enter/remain. • Denial of primary health care services and access to shelters for asylum-seeker victims of domestic violence and for victims of trafficking. Employment: • Equal pay – resolution of problems affecting current equal pay litigation against public sector employers and addressing the barriers to achieving progress in the private sector. Comparators, job evaluation defences, distinguishing contractual and non- contractual benefits, transition agreements. • Persistent disadvantage of ethnic minority women, pregnant women, maternity returners, parents with children and persons with caring responsibilities. • Disparities in treatment of women and men as parents. • Flexible working – improved protection for persons with caring responsibilities. • Job segregation within particular sectors. • Harassment; • New definition in Sex Discrimination Act 1975 (Amendment) Regulations 2008. • Third party harassment. Implementation of EU directives Issues arising from the Sex Discrimination (Amendment of Legislation) Regulations 2008 transposing the EC Gender Goods and Services Directive. Issues arising from the required transposition of EC Recast Directive 2006/54/EC by 15 August 2008. Positive action: • Wider application of positive action permitted under SDA. 17
  18. 18. • CEDAW – Use of direct application procedure. • Gender Equality Duty (see below – Public Sector Equality Duties). Gender Identity Employment: Protection against direct discrimination and harassment on grounds of gender-reassignment in employment, occupation, vocational training and further and higher education. • Who is protected/excluded from protection. • Discrimination – recruitment, retention, terms and conditions of employment. • Harassment and third party harassment. Discrimination outside the field of employment: Scope of protection Scope of protection against direct discrimination and harassment under the Sex Discrimination (Amendment of Legislation) Regulations 2008 transposing EC Gender Goods and Services Directive: • Access to and provision of health services. • Police response to trans people as victims of crime. • Extent and impact of ‘excluded matters’ and statutory exceptions; • Education in schools – discrimination and harassment. • Single-sex services. • Insurance. • Goods and services provided in religious organisation premises. 18
  19. 19. Promoting protection against gender identity discrimination equivalent to that for sex discrimination, including: • Indirect discrimination. • Education. • Public functions – prisons, immigration control. Gender Equality Duty: Compliance with the duty as it applies to trans people – duty to eliminate discrimination and harassment in employment and further and higher education. Promoting explicit inclusion and full coverage of gender identity equality within the Gender Equality Duty. Promoting broader protection against gender identity discrimination and harassment to include those not intending to undergo gender reassignment, perceived sex/trans status and association with a trans person. Criminal law: • Supporting transphobic motivation as an aggravating factor in sentencing as proposed in pending Scottish legislation and promoting parallel provision in future legislation for England and Wales. Race Definitions: Clarifying who is protected within: • ‘Ethnic group’: inclusion of Scottish Gypsies/Travellers. • ‘Racial or ethnic origin’ in Race Directive 2000/43/EC. Employment: • Persistent race discrimination at all stages of employment and treatment within the workplace. • Segregation – by type of work, by grade. • Treatment of migrant workers by employers/employment agencies. 19
  20. 20. • Third party harassment. • Language; • Essential requirement for recruitment. • Right to speak own language. Discrimination outside the field of employment: Education: • Institutional racism in schools (documented in DCSF report). • Persistent disproportionality in rates of school exclusion. • Differential rates of achievement. • Gypsy and Traveller children. • Asylum seekers, refugees, children of migrant workers. Goods, facilities and services: • Gypsies and Travellers – primary health care, ante-natal care. • Immigration status test for access to health and welfare services. • Racial profiling by public and private sector service providers. Housing: Gypsies’ and Travellers’ access to decent, suitable accommodation. Public functions: • Planning control – Gypsy and Traveller sites; pressure on planning authorities to discriminate. • Persistent racial profiling by the police, disproportionality in Stop and search, search of premises, arrest. • Response by police and CPS to racist incidents. • Prisons/young offender institutions and immigration detention centres. • Impact of s.19D RRA permitting discrimination for authorised immigration and asylum functions. 20
  21. 21. Positive action: • Wider application of positive action permitted under ss. 35 and 37– 8 RRA. Criminal law: • Effectiveness of racially aggravated offences/offences of inciting racial hatred. • Impact of existing and proposed anti-terrorism measures. Race Equality Duty (also see Public Sector Equality Duties on page 21) • Combating dissemination of false information by racist organisations. Religion or belief Definitions: • Which beliefs are encompassed or excluded under the definition of 'belief' (and lack of belief). Employment: • Discrimination in relation to manifestations of religion, religious belief or philosophical belief. • Scope of statutory exceptions; • Employment in maintained faith schools and academies. • Employment by religious organisations contracted to provide public services. • Harassment, including third party harassment. Discrimination outside the field of employment: • Scope of statutory exceptions in Part 2 Equality Act 2006. • Harassment – lack of statutory definition. Goods, facilities and services: • Impact of sectarianism. Education: • Admissions; 21
  22. 22. • Criteria for admissions to maintained faith schools and academies sponsored by religious organisations. • Related matters, for example, school transport. Public functions: • Planning control – use of premises for religious worship. • Criminal justice system - stop and search, search of premises, arrest, decisions to prosecute. • Prisons – treatment of Muslims and other religious minorities. • Immigration control – exceptions under s.52(4)(f) – (i), Part 2, Equality Act 2006, permitting religious discrimination in relation to various immigration decisions. Impact of existing and proposed anti-terrorism measures on Muslim community: • ‘Racial’ profiling by police and security services. • Discrimination in many other areas as a reaction to ‘terrorist’ image. • Instructions or pressure to discriminate. Discriminatory advertisements and pressure to discriminate: Promoting amending regulations to prohibit discriminatory advertisements, pressure or instructions to discriminate in employment, extending Commission’s powers to take enforcement action. Criminal law: • Operation and effectiveness of religiously aggravated offences. • Impact of offences re-incitement of religious hatred. Promoting a public sector religion or belief equality duty. Sexual Orientation Employment: • Bullying and harassment, including third party harassment (teachers, nurses, care workers others). 22
  23. 23. • Limit the scope of Reg. 7(3) Employment Equality (Sexual Orientation) Regulations 2003 – employment for purposes of an organised religion. Discrimination outside the field of employment: • Scope of exceptions in the Equality Act 2006 (Sexual Orientation) Regulations 2007. • Bullying and harassment (schools, criminal justice system) – no statutory definition of harassment in the 2007 Regulations. Goods, facilities and services: • Access to and provision of health services. • Private sector service providers. Public functions: • Policing – police response to reported homophobic incidents. Positive action: • promote use of positive action permitted under 2003 and 2007 Regulations. Discriminatory advertisements and pressure to discriminate: Promoting amending regulations to prohibit discriminatory advertisements, pressure or instructions to discriminate in employment, extending Commission’s powers to take enforcement action. Criminal law: • Effectiveness of higher tariff for homophobic motivation in England and Wales, promoting parallel law in Scotland. • New offence of inciting homophobic hatred. Promoting a public sector sexual orientation equality duty. Public Sector Race, Disability and Gender Equality Duties Compliance with general duties and specific duties: • Strategic national bodies with responsibilities that have a significant impact on equality outcomes – this would include many, 23
  24. 24. but not all, government departments and public bodies which have either; • standard-setting, regulatory or inspection functions, or • broad responsibilities for other public authorities within a region or in specific fields such as health, social care or education. • Individual public bodies with known poor equality records in policies, employment or service delivery, or poor performance in relation to a current Commission priority. • Public bodies working in sectors or on issues that have a significant impact on equality outcomes; this could include, for example; • Local authorities, which must address the causes of the gender pay gap in their gender equality schemes. • School governing bodies, which are required to monitor the attainment levels of pupils of different racial groups. • Primary care trusts, which must monitor how well their services meet the needs of disabled people and before adopting new policies, should assess their likely impact on equality for disabled people. • Compliance with equality duties in carrying out procurement functions. Compliance issues raised in litigation: • Non-compliance with general or specific duties included as an issue, or as evidence, in litigation under the RRA, DDA and/or SDA. • The outcome of litigation which exposes non-compliance with general or specific duties available as evidence for use by the Commission in the exercise of its enforcement powers. In relation to the Disability Equality Duty, to ensure full compliance by Secretaries of State, the Welsh National Assembly and the Scottish Ministers with their duties to report by 1 December 2008 on public authorities’ progress towards disability equality and proposals for coordination to achieve further progress; promoting similar obligations for race and (other than for Scottish Ministers who already have a similar gender duty) for gender. 24
  25. 25. Promoting a single equality duty for all protected grounds, levelling up to at least highest standards of existing separate duties. Human Rights Note: Many of the priorities listed above under the equality strands also involve human rights issues. Depending on the form of legal action the Commission adopts for a particular issue, the Commission will pursue any relevant human rights implications with the equality implications. The Commission will seek to establish a strong positive relationship with the Scottish Commission for Human Rights, which has powers in respect of all devolved matters. The following are specific human rights priorities: Human Rights Act: • Clarifying the ambit of protections and obligations under the HRA, including ‘other status’ (Art. 14 ECHR) and ‘public authority’. • Extent to which public authorities are HRA compliant. • Private residential care providers within the scope of the HRA • Discrimination on grounds or in areas not covered by the equality enactments that is within the scope of Art. 14 ECHR. • Privacy. • Immigration and asylum. • Education – SEN needs of looked-after children. • Access to justice. Criminal justice: • Impact of counter-terrorism measures on ECHR rights of certain communities. • Investigations of fatal and near-death incidents at places of detention. • Children within the criminal justice system, including forms of restraint, detention, ASBOs. 25
  26. 26. Implementation of judgments of ECtHR and ECJ in UK cases and application of other judgments relevant to UK laws, policies or practices – co-operating with Scottish Commission for Human Rights and Northern Ireland Human Rights Commission. Proposal for a British Bill of Rights, ensuring that it would extend and expand -- and would not in any way dilute or diminish – existing legal protections for human rights. Promoting an explicit statutory duty on public authorities to have due regard to human rights in carrying out their functions. International: • UK ratification of the UN Convention on the Rights of Persons with Disabilities. • Promoting UK ratification of Protocol 12 to the ECHR. • Proposals for a new EC directive extending the prohibition of discrimination to areas outside employment on grounds of disability, sexual orientation, age and religion or belief. • Examination by, and government and shadow reports to, international human rights bodies. • CEDAW - Use of direct application procedure. • Promoting UK ratification of direct application to CERD and other international human rights bodies. Annex A Equality and Human Rights Commission Our Vision A society built on fairness and respect. People confident in all aspects of their diversity. Our Mission The independent advocate for equality and human rights in Britain, the Equality and Human Rights Commission aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. 26
  27. 27. The Commission challenges prejudice and disadvantage, and promotes the importance of human rights. The Commission enforces equality legislation on age, disability, gender, race, religion or belief, sexual orientation or transgender status, and encourages compliance with the Human Rights Act. In order to bring about effective change, the Commission uses influence and authority to ensure that equality and human rights remain at the top of agendas for government, employers, media and society. We will campaign for social change and justice. Acting directly and by fostering partnerships at local, regional and national levels, the Commission stimulates debate on equality and human rights. The Commission gives advice and guidance to businesses, the voluntary and public sectors, and also to individuals. Developing an evidence-based understanding of the causes and effects of inequality for people across Britain, the Commission will be an authoritative voice for reform. ANNEX B Equality Act 2006 A. The Commission’s statutory duties The Commission’s statutory duties, set out in sections 8–11 of the Equality Act 2006, are to: • Promote understanding of the importance of equality and diversity. • Encourage good practice in relation to equality and diversity. • Promote equality of opportunity. • Promote awareness and understanding of rights under the equality enactments. • Enforce the equality enactments. • Work towards the elimination of unlawful discrimination. • Work towards the elimination of unlawful harassment. • Promote understanding of the importance of human rights. • Encourage good practice in relation to human rights. • Promote awareness, understanding and protection of human rights. 27
  28. 28. • Encourage public authorities to comply with section 6 of the Human Rights Act 1998 (compliance with Convention rights) (but none of the above human rights duties or the exercise of powers relating to human rights listed below, in respect of matters devolved to the Scottish Parliament, which are now functions of the Scottish Commission for Human Rights). • Promote good relations among and between groups and others, where ‘groups’ include a group or class of persons who share a common attribute in respect of any of the protected grounds. • Monitor the effectiveness of laws relating to equality and human rights and monitor and report progress towards identified desired outcomes. B. The Commission’s statutory powers The Commission’s statutory powers under the Equality Act 2006 include the following powers relevant to its legal work: Legal Policy – law and policy monitoring, advice and guidance • To advise central government about the effectiveness of any of the equality and human rights enactments and to recommend amendment, repeal, consolidation etc. of any of the equality and human rights enactments (s.11 (2)). • To advise central or devolved government about the effect of an enactment and the likely effect of a proposed change of law (s.11(2)). • To issue or revise a code of practice in connection with a matter addressed in the equality enactments (ss.14–15). • To give advice or guidance (about the effect or operation of an enactment or otherwise) (s.13). • To publish or otherwise disseminate ideas or information (s.13). • To undertake research (s.13). • To co-operate with persons interested in human rights within the UK or elsewhere (s.18). • To make, co-operate with or assist in arrangements for monitoring crime affecting certain groups (s.19). 28
  29. 29. Enforcement – actions by the EHRC in its own name • To conduct an inquiry into any matter related to equality and diversity, human rights or good relations between protected groups and report on its findings (s.16). • To conduct an investigation where it suspects that the person has committed an act that is unlawful under one of the equality enactments (s.20), and to serve an unlawful act notice (ss. 21–22). • To enter into an enforceable agreement to stop acts of discrimination or breach or public sector equality duty in lieu of an investigation, unlawful act notice or compliance notice (ss.23 and 24(2) and (3)). • To conduct an assessment of compliance with public sector equality duties (s.31). • To serve a compliance notice for breach of public sector equality duties (s.32) (for breach of general duties only after an assessment). • For the purposes of an inquiry, investigation or assessment, to require any person to provide information, produce documents or give oral evidence (Schedule 2 para. 9–14). • To apply for an injunction to restrain/interdict to prohibit commission of an unlawful act (s.24(1)). • To bring proceedings in relation to discriminatory advertisements, instructions or pressure to discriminate (s.25). • To bring own-name proceedings, including judicial review proceedings, and/or to intervene in proceedings relevant to its equality or human rights functions (s.30). Litigation and casework – action to assist victims of discrimination • To assist an individual in proceedings that relate wholly or partly to alleged breach of one of the equality enactments, where the individual alleges that they have been the victim of the alleged breach, including providing legal advice, legal representation, facilities for settlement or any other form of assistance (s.28). 29
  30. 30. • To assist an individual in proceedings concerning a landlord’s refusal to consent to an improvement in a dwelling to facilitate the enjoyment of the premises by a disabled tenant or other lawful occupier (s.28). • To make arrangements for the provision of conciliation services for disputes which could otherwise be litigated under one of the equality enactments (s.27). • To institute legal proceedings, including judicial review proceedings, relevant to a matter within the Commission’s functions (s.30). 30