The Commission for Equality and Human Rights: A new institution for new and uncertain times

Industrial Law Journal

Volumn 36, Issue 2, 2007, Pages 141-162

  O'Cinneide, Colm ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 34447523930     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwm001     Document Type: Article

References (81)

1. Joint Select Committee on Human Rights, Legislative Scrutiny: Equality Bill, 4th Report of Session 2005-06, HL Paper 89; HC 766, para 6.
2. The Equality Commission for Northern Ireland and the Northern Irish Human Rights Commission were to remain separate and outside the proposed new commission.
3. See Fairness For All: A New Commision for Equality and Human Rights Cm 6185, May 2004, paras 1.14-1.17.
4. C. O'Cinncide, A Single Equality Body: Lessons from Aboard (Manchester: EOC. 2002) at pp 7-9.
5. See the discussion in T. Choudhry. "The Commission for Equality and Human Rights: Designing the Big Tent' (2006) 13 Maastricht Journal of European and Comparative Law 321-22;
6. see also See K. Chouhan, 'One Big Equality Mush', Guardian, 30.11.04.
7. See the arguments made by the 1990 Trust, Our Rights, Our Future (London: 1990 Trust, 2004).
8. See also L. Holloway, 'Livingstone says single equalities body would be an "inaccessible monolith"', 24.3.04, Black Information Link, at www.blink.org.
9. It should be noted that the different equality commissions have always enjoyed different levels of financial support from their different sponsoring ministries: The budgets of the CRE and the DRC have in recent years been almost twice as large as that of the EOC. Compare the financial accounts contained in the Annual Reports of the three commissions over the last five or so years, available at www.cre.org, www.dre.org.uk and www.eoc.org.uk, respectively.
10. See C. O'Conneide, A Single Equality Body: Lessons from Abroad, 42-7,
11. The absence of a human rights commission has been seen as a major defect in the process of implementing the Human Rights Act: See S. Spencer and I. Bynoe, A UK Human Rights Commission: The Options (London: IPPR. 1998);
12. Joint Select Committee on Human Rights, The Case for a Human Rights Commission, 6th Report of the 2002-03 Session, HL 67/HC 489
13. F. Klug and K. Starmer, 'Standing Back From the Human Rights Act: How Effective Is It Five Years On?' [2005] Public Law 716.
14. Fairness Forl All, paras 10.12-10.21.
15. The CEHR is also placed under a statutory duty to consult the Disability Committee before exercising its powers or fulfilling a duty in a manner that would affect disabled persons. The existence of this Disability Committee was to he reviewed after five years, leaving open the possibility that this separate committee could be absorbed at some future date within the mainstream of the CEHR's structure.
16. Attempts to amend the Bill to provide for a separate committee for equality issues in London were rejected: See HL Debs, 19 October 2005, cols 761-6.
17. See CRE, Fairness for All: A Response (London: CRE, 2004).
18. See CRE Chair Calls for New Commission and New Rules for Integration CRE Press Release, 30.11.05.
19. See T. Choudhry,"The Commission for Equality and Human Rights: Designing the Big Tent', 319.
20. See HC Debates, 16 January 2006, cols 594-635; HL Debs, 19 October 2005, cols 757-61.
21. See Schedule 1, Part 1, ss 11-15 of the 2006 Act.
22. See Choundhury, 320.
23. Schedule 1, Part 1, s 2.
24. See s 5 of the Act.
25. See the original White Paper, Race Discrimination (London: Department of Employment, 1975), Cmnd 6234, which anticipated that the primary method of enforcing the legislation would be through the CRE's investigative powers.
26. See also A. Lester, 'Discrimination: What Lawyers Can Learn From History' [1994] Public Law 224-37,226-7;
27. V. Sacks and J. Maxwell, 'Unnatural Justice for Discriminator's (1984) 47 Modern Law Review 334, 334-5.
28. [1982] AC 779.
29. [1984] ICR 473.
30. See V. Sacks and J. Maxwell, 'Unnatural Justice for Discriminators' (1984) 47 Modern Law Review 334, 334-5;
31. see also G. Appleby and E. Ellis 'Formal Investigations: The Commission for Racial Equality and the Equal Opportunities Commission as Law Enforcement Agencies' [1984] Public Law 236.
32. [1982] AC 779, at 791.
33. See the report of the House of Commons Home Affairs Committee, Commission for Racial Equality, HC 46 (session 1981-2), November 1981.
34. See also the comments of Lord Denning in Science Research Council v Nassé [1979] QB 144, who used extraordinarilv intemperate language in comparing the use by the CRE of its investigative powers to 'days of the inquisition;.
35. See also the comments of Lord Oliver in Mandla v Lee [1983] 2 AC 548.
36. See E. Ellis and G. Appleby, 'Blackening the Prestige Pot? Formal Investigations and the CRE' (1984) 100 LQR 349.
37. The Northern Irish Equality Commission has found that it faces 'almost insurmountable problems, in launching named investigations under its equivalent powers. See Equality Commission for Northern Ireland, Legislative Reform: Commission Powers/Judicial Process (Belfast: ECNI, August 2003).
38. See C. McCrudden, 'The Commission for Racial Equality: Formal Investigations in the Shadow of Judicial Review' in P. Craig and C. McCrudden, Regulation and Public Law (London: Weidenfield & Nicolson, 1987) 227-66:
39. See also M. Munroe, 'The Prestige Case: Putting the Lid on the Commission for Racial Equality' (1985) Anglo-American Law Review 187.
40. See eg R v Secretary of State for the Home Department, ex parte Equal Opportunities Commission v Secretary of State for Employment [1995] 1 AC 1, HL.
41. The EOC has conducted very few formal 'named' investigations, and none between 1993 and 2003: See A.McColgan, Discrimination Law, 2nd edn (Oxford: Hart, 2005), 362.
42. See also V.Sacks, 'The Equal Opportunities Commission: Ten Years On' (1986) 49 MLR 560, 581-5.
43. Almost half of the formal investigations ever conducted by the CRE predated the Hillingdon and Prestige decisions: See C. McCrudden, D. Smith and C. Brown, Racial Justice at Work (London: Policy Studies Institute, 1991) ch 3. Section 4 of the Disability Rights Commission Act 1999 appears to confer a less-constrained named investigatory power upon the DRC: However, the DRC has (perhaps wisely) chosen not to test the uncertain limits of this power.
44. See McColgan, Discrimination Law, 362-75.
45. For a discussion of the code-making powers of the commissions, see C. McCrudden, 'Codes in a Cold Climate: Administrative Rule-Making by the Commission for Racial Equality' (1988) 51 MLR 409.
46. See C. Barnard, 'A European Litigation Strategy: The Case of the Equal Opportunities Commission' in J. Shaw and G. More, New Legal Dynamics of European Union (Oxford: Clarendon, 1995). Barnard estimates that by the early 1990s, cases supported bt the EOC represented about one third of all references heard by the European Court ot Justice on matters relating to equal pay and equal treatment of the workplace.
47. See also K. Alter nnd J. Vargas, 'Explaining Variation in the Use of European Litigation Strategies: European Community Law and British Gender Equality Policy' (2000) 33(4) Comparative Political Studies 452-82.
48. The legal budget of the Northern Irish Equality Commission became severely overstretched in 2000-01, requiring substantial cutbacks: See ECNI, Annual Report 2002-03 (Belfast: ECNI, 2004), pp 20-1.
49. For example, the attempt in McDonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School. [2003] UKHL 34 to extend protection against sex discrimination to cover cases of third party harassment based on sexual orientation not alone did not succeed, it also resulted in the earlier decision in Burton v De Vere Hotels Ltd [1996] IRLR 596, EAT being overturned.
50. See O'Cinneide, A Single Equality Body: Lessons from Abroad (Manchester: EOC, 2002) 20-22.
51. In the debates on the Equality Bill, Barones Ashton pointed out that the DRC phone help-line had in 2003-04 handled 120,000 calls, of which 40,000 were from employers and service-providers: See HL Debs, 11 July 2005, col 934.
52. See the reported remarks by Ken Livingstone to the effect that the CRE is now a 'vast press department', Black Information Link, www.blink.org, 4.9.06.
53. See CRE, Annual Report2005 (London: CRE,2006), available at http://www.cre.gov.uk/downloads/ar05_mean.pdf. In contrast, between 1977 and 1984, the CRE supported approximately one fifth of all race discrimination claims that were referred to it (150 in total). Of course, the case-load volume was much less in that time period: By the period 1994-1998, 1,750 cases on average peak period.
54. See J. Clarke and S. Speeden, Then and Now: Change for the Better, 27-28.
55. N. O'Brien, '"Accentuating the Positive": Disability Rights and the Idea of a Commission for Equality and Human Rights', paper delivered at the Industrial Law Society, Oxtord, 10.9.04; available at http://www-industriallawsociety.org-uk/papers/obrien-outline.htm (last accessed 13.12.04)
56. See Cadman v Health and Safety Executive, Case C-17/05 [2006] IRLR 969.
57. For an analysis of the DRC's enforcement and promotion strategy, see N. O'Brien, 'The GB Disability Rights Commission and Strategic Law Enforcement: Transcending the Common Law Mind'in A. Lawson and C. Gooding, Disability Rightsin Europe (2005) 249-63.
58. See Public Interest Research Unit, Teeth and Their Use- Enforcement Action by the Three Equality Commissions (London: PIRU, 2006);
59. see also Ten Years of the Disability Discrimination Act (London: PIRU, 2006), both reports available at www.piru.org.uk. It should be noted that both reports are open to serios criticism that they appear to overestimate greatly the ease with which the commissions might exercise their powers to achieve effective results.
60. See Fairness for All: A New Commission for Equality and Human Rights paras 1.10-1.11.
61. The CFHR however has full responsibility for equality and anti-discrimination issues in Scotland.
62. The absence of such an explicit power to intervene in court proceedings in the legislation establishing the Northern Irish Human Rights Commission required a decision by the House of Lords to confirm that the Commission did have this power: See In re the Northern Ireland Human Rights Commission [2002] UKHL 25.
63. Sections 31-2 of the Equality Act.
64. The existing commissions can at present only enforce the more detailed and narrower specific race and disability positive duties imposed on public authorities, which are essentially procedural in nature. See C.O'Cinneiede, 'A New Generation of Equality Legislation? Positive Duties and Disability Rights' in A. Lawson and C. Gooding, Disability Rights in Europe (Oxford: Hart, 2005) 219-48.
65. See s 24 of the 2006 Act. The EOC had previously only the power to seek an injunction against bodies with a previous 'track-record' of illegal discrimination, and even then this power was limited: See the almost indecipherable provisions of s 73 of the Sex Discrimination Act 1975.
66. See CRE, Ministry of Defence (Household Cavalry), Report of a Formal Investigation (London: CRE, 1996) p 5.
67. See O'Cinneide, Single Equality Bodies, pp. 20-1.
68. JCHR, 2004-05 Report, para 34.
69. The Scottish Human Rights Commission is similarly barred from supporting individual human rights actions. The DRC Had a reserved power under s 7(1)(b) of the Disability Rights Commission Act 1999 to assist individuals in cases based on the HRA, but this was never brought into effect by the necessary Ministerial order.
70. The CRE had sought the power to be able to support HRA cases: This was ultimately not supported by the JCHR, on the grounds inter alia that there is relatively acceptable availability via the Legal Services Commission and other sources of legal aid for human rights cases. See JCHR, 11th Report of the 2003-04 Session, The Commission for Equality and Human Rights: Structure, Functions and Powers, HL 78,; HC 536, paras 64-6.
71. See also F. Klug and C. O'Brien, 'Fairness for All? An Analysis of Human Rights Powers in the White Paper on the Proposed Commission for the Equality of Human Rights' [2004] Public Law 712-24, 719-21.
72. These provisions mark an improvement on the strongly criticised original proposals contained in the Equality Bill when it first reached Parliament, which would have prevented the CEHR being able to continue to support any ongoing case where the anti-discrimination element had fallen away.
73. See HL Debs, 19 October 2005, col 798.
74. See O'Cinneide, Single Equality Bodies, p 62.
75. The Northern Trish Commission has found that the absence of a requirement to have 'reasonable suspicion' has meant that the conduct of such investigations has proved much less confrontational than named investigations that have to be based upon specific allegations. See Equality Commission for Northern Ireland, Legislative Reform: Commission Power/Judicial Process (Belfast: ECNI, August 2003).
76. The CRE and EOC have repeatedly called for the removal of the Prestige requirement that a named investigation could be launched even in the absence, of a suspicion of discriminatory acts: See the discussion in McColgan, Discrimination Law, 370-5.
77. See J.C. Suk, 'Antidiscrimination in the Administrative State' (2006) University of Illinois Law Review 405-74, 460-4.
78. Suk contrasts the largely advocacy role of the UK commissions in the wake of Prestige and Hillingdon with the regulatory and dispute-settling role of the US and Canadian commissions: See Suk, above.
79. See the criticism of his appointment expressed by Ken Livingstone and others, Independent on Sunday, 6th August 2006.
80. See also Black Information Link, www.blink.org, 'Trevor Phillips Would Be "Final Nail in CEHR Coffin"', 4.7.06.
81. See B. Massie, 'The CEHR: A New Beginning or Dead End?', available at