The Government abandoned its plans to repeal the ‘general duty’ of the Equality and Human Rights Commission (EHRC) under the Equality Act 2006 (the Act) last week, but insisted upon amendments to the EHRC’s duty to monitor progress on equality and human rights.
The general duty in section 3 of the Act sets out why the EHRC exists and the aims towards which it should be working, namely that it:
shall exercise its functions…with a view to encouraging and supporting the development of a society in which
(a) people’s ability to achieve their potential is not limited by prejudice or discrimination,
(b) there is respect for and protection of each individual’s human rights,
(c) there is respect for the dignity and worth of each individual,
(d) each individual has an equal opportunity to participate in society, and
(e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.
As a purposive statement, the general duty was seen to complement wider developments in equality and human rights law, such as the positive obligations of the race and disability equality duties and the desire that the Human Rights Act 1998 would bring about cultural change. It helps clarify that the role of the Commission is not only to enforce existing law, but to pursue wider social change.
The general duty also provided the focus for EHRC’s separate duty to monitor progress in society on equality and human rights. Section 12 of the Equality Act 2006 presently requires that: (1)The Commission shall from time to time identify (a) changes in society that have occurred or are expected to occur and are relevant to the aim specified in section 3, (b) results at which to aim for the purpose of encouraging and supporting the development of the society described in section 3 (“outcomes”), and (c) factors by reference to which progress towards those results may be measured (“indicators”). The Commission’s reports ‘How Fair is Britain?’ (2010) and ‘Human Rights Review’ (2012) are the product of this duty.
In 2011 the Government announced its plans to bring forward a series of legislative and non-legislative reforms of the EHRC, some of which were dropped following interventions from the UN High Commissioner for Human Rights and others, who raised concerns that they were incompatible with the EHRC’s status as Britain’s national human rights institution. However, the Government proceeded to include clauses in the Enterprise and Regulatory Reform Bill to repeal the general duty and reform EHRC’s duty to monitor progress (in addition to removing its duty to promote good relations and its powers to provide conciliation). It argued that the general duty served no legal purpose and did not help clarify the precise functions that the EHRC is required to carry out.
As the government was proposing to repeal the general duty, it had to table a consequential amendment to the monitoring duty in section 12 as follows:
‘(1) The Commission shall from time to time identify (a) changes in society that have occurred or are expected to occur and are relevant to the duties specified in sections 8  and 9], (b) results at which to aim for the purpose of encouraging and supporting changes in society that are consistent with those duties (“outcomes”), and (c) factors by reference to which progress towards those results may be measured (“indicators”).’
According to the Government’s report on the consultation on EHRC reform, over 80% of respondents opposed repeal of the general duty, expressing concern about ‘losing the guiding principles and values set out in the general duty, which had been debated in Parliament during the passage of the Equality Act 2006.’
The cross-bench Peer Baroness Campbell of Surbiton successfully tabled amendments at Report stage in the House of Lords but the Government ignored these, reinstating the two clauses when the Bill returned to the Commons. On Monday, by chance the 20th anniversary of the racist murder of Stephen Lawrence, Baroness Campbell re-tabled her amendments, which again secured wholesale support from members on all sides of the House of Lords, winning by 210 votes to 180.
The following morning the government announced its intention to back down on the repeal of the general duty. However, it decided to press ahead with its amendment to section 12 on grounds that ‘we do not consider it realistic to expect the EHRC to report in a meaningful or effective way against a duty which, by general agreement, is essentially symbolic’.
Baroness Campbell had highlighted the risk of this amendment in her speech on Monday evening, pointing out that whereas the EHRC’s existing monitoring duty requires it to ‘hold up a mirror to society’, in future it would be limited to ‘holding up a mirror to itself and asking only “how effective is the Commission?”’
However, the risk identified by Baroness Campbell stemmed from the possibility of the Commission losing its general duty as well. As the Commission will now be required to continue to discharge its functions with a view to encouraging and supporting the development of the society envisaged at section 3, any consideration of changes in society that are consistent with the duties at sections 8 and 9 will, despite the amendment, have to continue to take account of the aims in the general duty. Further, the amendment will now mean that the Commission will need to monitor additional issues such as public attitudes towards, and understanding of, equality and human rights, and the compliance of public authorities with section 6 of the Human Rights Act.
Neil Crowther is an independent consultant and previously held the posts of Director of the Human Rights Programme and Director of Disability Rights at the Equality and Human Rights Commission.
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