Anti-discrimination agencies: new beginning or bitter end?

The Home Office will soon be advertising for Gurbux Singh’s replacement following his ignominious departure from the Commission for Racial Equality (CRE) after a drunken fracas with two policemen outside Lord’s cricket ground in July. If the Government has its way, his successor could well be the last CRE chairman.

Back in May, Barbara Roche, Minister of State at the Home Office, unveiled plans for a new unified watchdog – the Equality Commission – to replace the three bodies responsible for fighting discrimination on race, gender and disability.

The establishment of a super-watchdog is not a prospect that Peter Herbert, the chairman of the Society of Black Lawyers, relishes. “If you have some kind of ‘one-stop shop for diversity’, how on earth do you get somebody who has the credibility within the community to go in and deal with the issues?” he asks. Herbert’s name was on the shortlist for the top job at the CRE last time around.

The barrister fears that talk of a single equality commission – replacing the CRE, the Equal Opportunities Commission (EOC) and the Disability Rights Commission (DRC) – inevitably means a “dilution of the agenda” in a society that still has to learn the lessons of the murder of Stephen Lawrence. He points to last year’s disturbances in the North of England as evidence of the need for a race watchdog with credibility.

“It would be very difficult to go into a community like Bradford or Burnley and say, ‘I’m from the Diversity Commission, listen to me’,” Herbert reflects.

There is nothing new in the call for an overarching ‘equality commission’. For example, the think-tank the Institute for Public Policy Research (IPPR) has been calling for a single ‘human rights commission’ for more than five years. The reason for the Government’s interest now is to keep ahead of its commitments under a new European directive to outlaw discrimination on the grounds of sexual orientation, religion and age.

“One thing is certain: we can’t have a ‘do nothing’ approach,” Roche argues. “We can’t have six commissions dealing with six separate strands.” The Government plans to have firm proposals on the future shape of such a body by the autumn and it is looking at a 2006 launch.

“All of these different areas need to be brought under one roof,” comments Makbool Javaid, a former head of litigation at the CRE and an employment partner at DLA. “It doesn’t make any sense for more commissions to be created.”

He believes that the Equality Commission could mark a “paradigm shift” in the treatment of equality issues and that such a body would be better placed to argue for a wider acceptance of the notion of diversity. “No longer will discrimination laws be the sole preserve of minority groups”, he argues.

Sceptics believe that rationalisation of the commissions only makes sense if it goes hand-in-hand with a radical reworking of the disparate legislation under a single act of Parliament. According to Sarah Spencer, director of the IPPR’s citizenship and governance programme, “true equality will never be realised” while new legislation on age, religion and sexual orientation remains much weaker than existing legislation on race and disability.

“Having six different laws – on race, gender, disability, age, religion and sexual orientation – will be as confusing for employers as for the public,” says Spencer. “If we’re to have a unified commission, we should have a unified law.”

It is a message that many employment law practitioners would endorse. “If the Government could move towards an increased rationalisation of the legislation, it would represent a stepping stone,” says Matt Dean, an employment law specialist at Simmons & Simmons. “From a business point of view alone, to have access to a single organisation that deals with discrimination issues would be a huge advantage.”

Michael Burd, joint head of employment at Lewis Silkin, adds: “The question for me is not whether [the legislation] is all in one act of Parliament or three separate acts, but how well expressed and workable it is in practice.” He points to the problems that courts have had to tussle with over the definition of disability under the Disability Discrimination Act 1995. And the biggest challenge for the law-makers is yet to come in outlawing age discrimination, he adds.

As far as the institutions themselves are concerned there is apparent unanimity about the need for a serious look at reform. The UK’s equality laws are “a mess”, wrote Julie Mellor, chair of the EOC recently. “If you’re treated unfairly because of your sex, your race or your disability, you can do something about it,” she argued. “But if you apply for a job and the interviewers decide your face doesn’t fit because you’re too old or because they don’t like your religious beliefs, the law offers you no protection.”

Unsurprisingly, the DRC, the newest watchdog on the block, is not thrilled at the prospect of having to dismantle its operation after only three years. Chairman Bert Massie has already hit out at ministers for peddling the idea because it was ‘neat’. “Disabled people don’t want people who aren’t disabled talking about their difficulties,” he says. “What have we got in common with these groups?”

Each of the watchdogs has grown to be very different in nature from the others in response to the needs of their audiences. Consequently, it is unclear which model an equality commission would follow. For example, the DRC has adopted a ‘litigation as last resort’ approach to the courts. (“We’ll start by using the force of argument and if that fails we’ll use the argument of force,” Massie once said.)

Herbert was involved in legal action against the Crown Prosecution Service (CPS) that prompted the Sylvia Denman inquiry, which concluded that institutional racism “has been and continues to be at work” in the CPS. “You have to be proactive,” he says. “You can certainly encourage the public and private sectors to get their houses in order, but if they don’t then you have to carry a big stick.
Sadly, that’s what still appears to work.”

A major concern is the political independence of any new body. For example, campaigners on race issues have attacked Singh at the CRE for his lacklustre record and, in particular, his unwillingness to attack the Government over its immigration policy and its response to the disturbances in the North of England last year.

“One of the shortcomings of each of the respective present bodies is that they’re answerable to the Home Secretary,” notes Herbert. “As much as that might be practicably necessary, it’s often the Government that they have to challenge, and that puts them into an invidious position.”

As well as ensuring political independence, Javaid argues that a new body will have to guarantee that the agendas of the old bodies are not watered down.

“Discrimination ought not to be ignored or sidelined in a single body and it has to have the flexibility to be able to set its priorities,” he says. “The structure has to be such that each of its particular areas are given the resources that are necessary to be able to develop the law in that area.”