The Commission for Equality and Human Rights begins life on 1 October as the single watchdog for tackling inequality and discrimination for England, Wales and Scotland.
It replaces the Disability Rights Commission, Commission for Racial Equality and Equal Opportunities Commission, and assumes responsibility for tackling discrimination on the grounds of age, sexual orientation and religion or belief, and encouraging compliance with the Human Rights Act 1998.
Its expected budget of £70m exceeds those of its predecessors put together. And, the government argues, it will be able to pool expertise in tackling discrimination and more effectively address multiple forms of inequality – such as those faced by black mental health service users.
Green paper misgivings
The CEHR has existed in shadow form since late last year, following former CRE head Trevor Phillips’ appointment as chair. But its launch comes with misgivings over its ability to deliver.
The commission is part of a wider drive to simplify equality law, which has developed in a piecemeal fashion. The Department for Communities and Local Government produced a green paper in June as a prelude to legislation to streamline current laws. But this received a barrage of criticism from all three existing commissions and charities. The three equality commissions accused the DCLG of watering down existing duties on public bodies to promote race, disability and gender equality.
The duties are seen as vital in encouraging councils and others to tackle entrenched inequalities in their service provision, workforces and communities.
The green paper proposed unifying them into a single duty, enforced by the CEHR, which could be extended to sexual orientation, belief and age. But it also proposed ditching requirements for public bodies to “have due regard” to promoting equality in each of the three dimensions. This provision is designed to ensure bodies take account of the gender, race and disability implications of all they do, by carrying out equality impact assessments of their policies.
The CRE’s inquiry into the Department of Health’s compliance with the race equality duty, launched in February, is based on its failure to carry out adequate race impact assessments on many policies.
In a letter to the DH in June, CRE director of policy and public sector Nick Johnson said its assessment of the Mental Health Bill (now Act) was “flawed at best” – despite the inequalities faced by black mental health service users.
The green paper instead proposed public bodies establish priority equality objectives across all three areas and take proportionate action towards achieving them, on the basis that the current general duties are too unspecific.
In response, the DRC said the proposals would result in equality being “sidelined” rather than “core business”. Public bodies would concentrate only on priority objectives that would focus on “measurable” goals, neglecting less quantifiable ones, such as schools’ work to include disabled children in activities outside of normal hours.
DRC director of policy and communications Agnes Fletcher says the proposals would “harm the effectiveness of the new commission”, by weakening the legal force at its disposal.
Johnson says that if the government does not listen to these criticisms of the green paper, “it is effectively cutting the new body off at the knees”.
Both suggest the CEHR should speak out against the proposals, although it has not committed itself. A spokesperson for the new commission says its advice to government on the green paper will be based on the need for “robust and comprehensive laws…to promote equality”, and it will actively pursue changes where appropriate.
The green paper also came in for criticism on age, which remains the only one of the six equality areas where discrimination in the provision of goods and services is not illegal.
It said the government was “not yet convinced” of the case for legislation, citing the need to continue “positive” discrimination on age grounds – such as concessionary travel – and avoid “undue burdens on business”.
Yet for older people’s charities, age discrimination remains rife, including in health and social care, with legislation the only answer. For instance, last month’s final report from the Age Concern-backed UK Inquiry into Mental Health and Well-being in Later Life found older people with mental health problems were often ignored.
Kate Jopling, head of public affairs at Help the Aged, says the CEHR would be “stymied” in making progress on age by a lack of a legislative playing field.
She adds: “So long as the legislative position is inequitable it will be nigh on impossible for the commission to give equal status to age [with the other areas of its work].”
Campaigners have been concerned the CEHR would not be able to give each of the six areas equal status since its conception.
The CRE had initially opposed joining the CEHR and was initially due to retain its independence until 2009. During the passage of the Equality Act 2006, which set up the CEHR, the DRC campaigned successfully for it to include a statutory disability committee to monitor its work on disabilities, despite this not being extended to the other areas.
The existing commissions are keen for the CEHR to take on their work, but Johnson says it is yet to commit itself. He says the CRE’s report on the DH, due at the end of the month, will “not pull any punches”, and it would be “negligent” of the CEHR not to pursue its findings.
Fletcher adds that the DRC’s work on highlighting the healthcare inequalities faced by people with mental health problems and learning disabilities, on which it reported last year, was “very much unfinished business”.
For Jopling, the fact there is no current age watchdog puts it at a disadvantage because it lacks a “legacy”.
There are also concerns, raised in a communities and local government select committee report last month, that its budget is inadequate. The EOC has cited £125m as adequate funding although Fletcher believes the commission has enough money and the CEHR spokesperson says £70m will enable it to deliver its business plan.
The select committee report also bemoaned the fact the CEHR would not be fully staffed on 1 October. The organisational make-up of the CEHR was only decided in June, meaning staff from the existing commissions could only be matched to new jobs from then on. It is still recruiting 13 directors to take leadership of its work.
Johnson says the handling of its establishment has been “woeful”, adding: “There’s not been enough involvement of the three commissions, or stakeholders. It doesn’t fill people with confidence.”
Yet, despite the criticisms, there remains optimism over the potential of the CEHR, particularly in tackling multiple forms of inequality. Fletcher praises the “huge amount of expertise inside the commission”, but adds: “The institutional arrangements are untested. We need to be looking at it in a year’s time.”
CEHR must tackle mental health discrimination, says Mental Health Action Group
Commission for Racial Equality
Disability Rights Commission