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,
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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.
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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
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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
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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
ellie.rose@equalityhumanrights.com
‘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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