Goods and services cases – how the EHRC can help

1. Goods and services cases – how the EHRC can help Nony Ardill Senior Lawyer Equality and Human Rights Commission

2. Role of Commission • National Human Rights Institution (A status) approved by UN in accordance with the Paris Principles. • National Equality Body as mandated by the European Union Equality Directives • Equality Regulator for GB (under Equality Act 2006)

3. General duties and powers • Section 3, Equality Act 2006 - general duty to encourage development of society where: • Potential not limited by prejudice/discrimination • Respect for individuals’ human rights • Respect for dignity and worth • Equal opportunity to participate in society • Mutual respect between groups • Section 8 - duty to promote equality and diversity, including through enforcement • Section 9 – duty to promote awareness of human rights and encourage compliance

4. Our power to provide legal assistance • Section 28, Equality Act 2006 • Provision of legal assistance to an individual who is (or may become) party to legal proceedings • Proceedings must relate to provision of Equality Act 2010 • Can cover breaches of the Human Rights Act but only where there is also a alleged breach of Equality Act 2010 • Priorities for assistance guided by the EHRC’s litigation strategy.

5. Our power to intervene or apply for judicial review Section 30 Equality Act 2006 • Breaches of Equality Act or Human Rights Act • Power apply for judicial review in ‘own name’ • Bypasses victim status normally required by HRA • Also power to apply to intervene • neutral legal and policy expertise • adding value • help achieve progress in the development or interpretation of the law • NB increased costs risks for interveners (Section 87 Criminal Justice and Courts Act 2015)

6. Power to apply for injunctions Section 24 Equality Act 2006 • Power to apply for injunction where organisation likely to commit unlawful act • Example: against the BNP in 2009 re unlawful membership criteria ('indigenous Caucasian' ) • This power would only be used for urgent cases where no other means of resolving the issue

7. Our enforcement powers Powers under Equality Act 2006): • Inquiries (s16) • Investigations (s20) • Unlawful Act Notices (s21) • Action Plans (s22) • Agreements (s23) • Public Sector Duty Assessments (s31) • Public Sector Duty Compliance Notices (s32) Power under Equality Act 2010 • Pre-employment health questionnaires (s60) NB These powers do not apply to breaches of the HRA.

8. Inquiries • The Commission may conduct an Inquiry into any issue relating to equality and diversity or human rights • The legal steps involved in the Inquiry process include: • publishing the terms of reference • requiring organisations to provide information • voluntary approach preferred • publication of findings • status of report (‘shall have regard to recommendations’) • Examples: Disability-related harassment; Older people and human rights in home care; Deaths in detention of adults with mental health conditions

9. Investigations • Evidence of unlawful act under Equality Act 2010 (but not HRA). • Legal steps: • Providing written details of why an act may be unlawful • Providing TORs • Providing opportunity for comment on TORs and taking into account. • Deciding evidence collection powers. • Representations before publication where an unlawful act has been committed • Example: current investigation into Met Police treatment of female, BME and gay employees

10. Unlawful Act Notices • Failure to act on recommendations in an investigation • Commission may issue an unlawful act notice • Notice may require the preparation of an action plan and recommendations • Commission can apply for a court order on failure to comply with notice • Failure to comply with court order is a criminal offence

11. Agreements • Relevant where Commission believes an organisation has committed an unlawful act. • Action plan over 12 to 18 months • Wide-ranging from Board involvement to management training • Preferable alternative to formal enforcement for organisation • No formal Investigation necessary • Regular contact and reports on progress. Recent example: Betfred betting shops (need for diversity and equality awareness training)

12. PSED Assessments and Compliance Notices • Power to undertake an assessment to evaluate compliance with Public Sector Equality Duty (PSED) • Assessment purpose: • obtain evidence for further enforcement action • identify areas of best practice in performance of PSED • Legal framework same as for investigations • If public authority assessed as not complying with PSED: • Power to serve compliance notice • If failure to comply, power to apply for court order • Failure to comply with court order is a criminal offence

13. S60 Equality Act 2010 – pre-employment questions • Commission has sole power to enforce • Enforceable as ‘unlawful act’ • No questions about health or disability before end of recruitment process • Exceptions: • Identifying availability for assessment • Making reasonable adjustments • Identifying whether can undertake a function intrinsic to job • Monitoring diversity • Supporting positive action for disabled people. • Identifying candidates where there is an occupational requirement of disability

14. In relation to human rights breaches Three major legal functions: • Intervene in human rights proceedings • Take judicial review proceedings for breaches of the Human Rights Act • Hold inquiries • In addition, monitoring and promoting UN treaties

15. Public Law Principles • As a statutory body • The Commission has no powers beyond those granted by statute • Those must exercised in pursuit of duty • Must be reasonable, rational, fair, unbiased and compliant with HRA • Reasons must be clearly set out. • No blanket policies for use of powers • No fettering of discretion • Regulators’ Code of Practice • Subject to judicial review

16. EHRC strategic litigation policy • Revised version published March 2015 • Preceded by period of consultation • Policy applied in accordance with: • Regulators Code • EHRC statutory remit and NHRI status • Compliance and enforcement policy • Current strategic plan/business plan priorities • Strategic litigation policy is on our website: • http://www.equalityhumanrights.com/legal-and-policy/our-legal-work/strategic-litigation/strategic-litigation-policy

17. Factors that will be considered • Setting precedent/wider public interest? • Continuing breach(es) of the law? • Is litigation is best means of resolving issue… • …. and is this case the best way of doing it? • Effective use of EHRC resources? • Emerging information from stakeholders?

18. Specific criteria for S28 funding • Strength of case under EA 2010 • Whether case would proceed without our help • Form of assistance requested: • Legal advice • Legal assistance • Facilities for settlement • ‘Any other form of assistance’ • Whether more appropriate to use S30 powers • NB first instance cases not usually funded, but exception might be made for goods & services cases

19. Specific criteria for intervening • Can the EHRC act as neutral legal or policy expert? • Would our submissions add value? • Would clarification of law lead to systemic change? • Would any other party be intervening? • Possibility of joint intervention? • Would using S28 powers be more appropriate? • NB S30 own name JR – power rarely used

20. Decision making process • Request for assistance considered by fortnightly Allocations Meeting (legal team) • Allocated to legal team member for scoping • Paper prepared for Regulatory Decision Making Pathway meeting (fortnightly) • Urgent cases can be decided by RDMP chair • All RDMP decisions cleared by Chief Executive • There is a process for requesting a review

21. How to contact us about case • For lawyers/those with professional interest • By email: legalrequest@equalityhumanrights.com • By phone: Lawyers' Referrals helpline (England and Wales): • 0161 829 8407 • Tues to Thurs, 10am to 1pm NB: Members of the public: EASS helpline • Website: www.equalityadvisoryservice.com/ • Phone: 0808 800 0082/Textphone: 0808 800 0084

22. Thank you! Nony Ardill, Senior Lawyer Equality and Human Rights Commission Nony.ardill@equalityhumanrights.com 020 7833 7857