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

Published online by Cambridge University Press:  25 January 2019

David Barrett Open the ORCID record for David Barrett [Opens in a new window]
David Barrett*
Affiliation:
School of Law, University of Exeter, Exeter, UK
*
*Author email: [email protected]
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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.

Keywords

civil liberties and human rightsEquality and Human Rights Commissionregulatory spaceregulatorsinspectorates and ombudsmenreflexive governanceequality law
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 2 , June 2019 , pp. 247 - 265
Copyright
Copyright © The Society of Legal Scholars 2019 

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Footnotes

†

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.

References

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.

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

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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.

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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.

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

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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)Google Scholar.

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

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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).