Deregulation Bill
Equality and Human Rights Commission briefing on
clauses 2 and clauses 61 to 64
Second reading, 3 February 2014
Contact details:
Finola Kelly (parliamentary team), 020 7832 7826 or
finola.kelly@equalityhumanrights.com
Executive summary
 The Joint Committee noted that the Commission is fully supportive
of the intent behind the growth duty, but in its conclusions
recommended that the fact that duty would not impact on the
independence of regulators be made clear on the face of the Bill.
 The Commission supports the Committee’s conclusion in order to
avoid the risk of downgrading of our UN accredited NHRI status. In
accordance with its recent track record, the Commission commits
to voluntarily complying with the intentions and purpose behind the
growth duty and the draft guidance in relation to our activities and
exercise of our regulatory functions.
 Our position on clause 2 remains the same; we consider that the
power of an Employment Tribunal to make wider
recommendations to an employer who has been found to have
breached the Equality Act 2010 is useful and that the case has not
been made for its abolition.
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Introduction and background
The Commission provided oral and written evidence to the Joint
Committee on the Draft Deregulation Bill principally on two particular
clauses in the Bill:
 the proposal to place a statutory duty on regulators (including the
Commission) to have regard to the need to promote economic
growth when exercising regulatory functions (clause 60 of the draft
Bill).
 the proposal to remove the Employment Tribunals power (following
a finding of a contravention) to make wider recommendations to
the offending party for the benefit of any other person beyond the
complainant, under section 124(3) of the Equality Act 2010 (clause
2 of the draft Bill).
Growth duty - clause 61 to 64
Relevant changes
Clauses 61 to 64 of the current Deregulation Bill have changed slightly
from the equivalent provisions in the draft Bill (clauses 58 to 60).
The first change is the removal of the power to define the meaning of
economic growth through Ministerial guidance on the growth duty
(issued under clause 63(2)). The courts are the ultimate arbiters of what
constitutes economic growth. Guidance under clause 63 can now only
concern ways in which regulatory functions may be exercised to promote
economic growth and how those that have duties under clause 61 can
demonstrate compliance.
The second change is the exclusion of instituting and conducting
criminal proceedings (but not all functions up to and including decisions
to refer the matter to prosecutors to review if criminal proceedings
should be instigated) and the conduct of civil proceedings from the
definition of regulatory function in clause 64(2) of the Bill. However, as
the explanatory notes clearly point out this does not include decisions to
instigate civil proceedings, a matter most relevant to the Commission’s
suite of regulatory enforcement powers.
Draft guidance
Draft 'principles-based' guidance has been developed through
collaboration with businesses and regulators, and issued by the
Government's Better Regulation Delivery Office in January 2014.
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Our analysis of the growth duty in clauses 61 to 64
The changes to the growth duty and the content of the draft guidance
provide some welcome clarity but do not fully address the conclusions of
the Scrutiny Committee.
The Joint Committee on the Draft Deregulation Bill report (session 201314 HC 925, HL Paper 101), page 37, paragraph 104, noted that the
EHRC is fully supportive of the intent behind the growth duty, but in its
conclusions it also stated:
"We conclude that an economic growth duty on regulators is welcome
provided that safeguards are in place to ensure that the growth duty
does not take precedence over regulation and that the overriding and
principal objective of regulators remains the protection of the public
interest. We welcome the Minister's assurance on these points; that the
duty will not "take precedence over the main reason for their existence...
[or] impinge on the confidence that the public have in the way they
exercise their regulatory function".
Additionally, in page 37, paragraph 105 of its report the Joint Committee
stated:
"Furthermore, we recommend that any powers given to Ministers to
issue guidance under clause 60(2) (b) of the draft Bill, on how the
economic growth duty should be performed must not compromise the
independence of regulators. The Government should consider making
this clear on the face of the Bill".
Our analysis of clauses 61 to 64 of the Deregulation Bill is that the
changes made do not contain sufficient safeguards and clarity on the
face of the Bill to reflect those particular recommendations of Joint
Committee on the draft Bill.
The United Nations (UN) has given the Commission the highest possible
accreditation ('A status') as a National Human Rights Institution (NHRI).
The United Nations 'Paris Principles' require NHRIs to be independent
from Government. This is reflected in domestic legislation - see
Schedule 1, part 4, paragraph 42 of the Equality Act 2006.
That UN accredited 'A status' is still at risk of being downgraded if, as the
Government intends, the growth duty applies to the Commission.
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Employment Tribunal wider recommendations - clause 2
This provision has not significantly changed from that proposed in the
draft Bill.
In its report (session 2013-14 HC 925, HL Paper 101), the Joint
Committee on the Draft Deregulation Bill set out the Commission’s
position on clause 2 at page 61, paragraph 201 of their report. It stated:
"...The EHRC saw the power as being useful, for both the company to
whom the recommendation is made and to the Commission in following
up tribunal decisions. It did not think that sufficient evidence had been
collected to decide whether or not the power should be abolished and
suggested instead that it be reviewed...".
Our position on the equivalent clause (2) of the Deregulation Bill remains
the same; we consider that the power is useful and that the case has not
been made for its abolition.
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 a regulator, the Commission is responsible for enforcing equality
legislation on age, disability, gender, race, religion or belief, sexual
orientation or transgender status, and encouraging compliance with the
Human Rights Act.
The Commission has achieved ‘A’ status accreditation as a National
Human Rights Institution, enabling us to participate in the United Nations
Human Rights Council, and to undertake monitoring of the UK’s human
rights obligations.
We also give advice and guidance to businesses, the voluntary and
public sectors, and to individuals.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
Equality and Human Rights Commission
February 2014
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