Powers of the EHRC
The EHRC will be given a suite of statutory
powers necessary for it to promote changes and improvements in
society in respect of equality and diversity, human rights and
good relations.
Generally, these will support its
promotional work, although it will have specific powers
relating to the enforcement of discrimination (but not human
rights) legislation.
Inquiries
The EHRC will be able to conduct inquiries
into any matter relating to its duties.
The purpose of inquiries is to develop and
promote improved practice in equality and diversity, human rights
and good relations. Inquiries may be thematic or may be
specific into named organisations.
The EHRC will be able to initiate these
inquiries independently or at the request of the Secretary of
State.
It will be required to publish terms of
reference before launching an inquiry, and will publish reports
at the end of the process, which could include recommendations
for change.
The EHRC will be able to compel evidence
relevant to an inquiry.
Codes of practice
The EHRC will be able to publish statutory
codes of practice in respect of any area of discrimination law.
It will work in partnership with employers,
service and education providers in developing these codes, which
will clearly explain the requirements of the law.
The codes will help business and the public
sector to understand their responsibilities, distinguishing
clearly between their legal obligations and recommended good
practice.
The commission will be able to prepare new
codes either on its own initiative or at the request of the
relevant Secretary of State.
It will have to consult with interested
parties before it issues a code and publish it in draft so that
members of the public can comment on its proposals.
Although it will not be unlawful if an
employer or service provider fails to comply with
recommendations set out in a code of practice, courts and
tribunals will take relevant Codes of Practice into account when
deciding if discrimination has occurred.
Third party interventions
The EHRC will be able to seek leave to
intervene in court cases relevant to its remit (ie equality and
human rights) to provide the court with expert knowledge.
The Government intends that these
interventions should be of a strategic nature and should be
closely tied to the EHRC’s core aims.
Strategic enforcement of discrimination
legislation
The EHRC will be expected to take a
strategic approach when enforcing the law, and will use its
powers as a lever for broader change.
Whilst there is no statutory criteria
limiting the cases it can support, the EHRC is expected to support individual cases that lead to a clearer understanding of
the law or have a widespread impact in securing fairer treatment
for individuals.
It will also have powers to tackle cases of
serious and persistent discrimination.
Supporting cases
The EHRC will have the power to provide or arrange
the provision of legal advice or representation or any other
form of assistance to individuals bringing legal proceedings
under the discrimination legislation. There is no statutory
criteria limiting the nature or the cases and the EHRC will need
to develop its own strategic priorities. It will not be able to
support cases brought under the Human Rights Act.
Settling disputes
The EHRC will be empowered to arrange for
the provision of conciliation services in disputes related to
discrimination in the provision of goods, facilities, services
and education, and the exercise of public functions. It was
decided not to provide this power in respect of employment
matters, in order not to duplicate the work of ACAS.
If it decides to establish a conciliation
service, the EHRC will make decisions about which disputes are
referred to the conciliator.
Conciliation will be delivered by an
independent provider to ensure that information about the case
would not become available to EHRC, which could potentially be
involved in supporting a case where conciliation broke down or
in formal enforcement proceedings against a discriminator.
Investigation and
enforcement powers
The EHRC (like the existing commissions)
will have powers to conduct investigations into unlawful acts of
discrimination or harassment. To do this, it must have
reasonable suspicion that an unlawful act of discrimination or
harassment has taken place.
If the EHRC concludes following an
investigation that unlawful discrimination or harassment has
taken place, it will be able to serve an unlawful act notice on
the organisation which has committed the discrimination.
This notice can involve the recipient having
to prepare an action plan, setting out the steps he or she will
take to stop the discrimination occurring or recurring and the
timescale in which the action will be taken.
The new commission will also have the power
to conduct an investigation to find out whether unlawful act
notices and binding agreements are being complied with.
It will be able to apply to the courts for
an injunction where it believes that there is persistent
discrimination.
Where a company or organisation is willing
to work with the EHRC to achieve improvement, it can enter into
a binding agreement with them instead of taking enforcement
action.
As part of that arrangement, the company or
organisation will have to agree to an action plan setting out
the steps they will take to improve their practices, over a
specific timescale.
If it does not stick to the plan, the EHRC
would then be able to apply to the courts to enforce it.
NEW OR WIDENED POWERS AVAILABLE TO THE EHRC COMPARED WITH THE CURRENT COMMISSIONS
* indicates a new or widened power
proposed since the publication of Fairness for All in May 2004.
The EHRC will have a duty to promote equality and diversity – in
a general, overarching way and not limited to the 6 strands
enjoying legislative protection from discrimination
There will be no statutory criteria limiting the
EHRC’s support
for an individual bringing proceedings under discrimination
legislation. There are such criteria in place currently.*
There will be no
doubt that EHRC can support or take combined equality and human
rights cases (like the Roma case) and there will be an
order making power to enable the EHRC to continue to support
such cases if the discrimination element should fall away during
the course of the case.*
The EHRC will have an explicit
statutory power to apply to intervene as a third party in
on-going cases which may have an equality or human rights
dimension.
The EHRC will be able to arrange conciliation services for discrimination cases
concerned with goods, services, facilities, premises and public
functions.
EHRC will have a duty to promote understating of the importance of human rights,
encourage good practice in relation to human rights, promote
awareness, understanding and protection of human rights and
encourage public bodies to comply with their obligations under
the Human Rights Act.
There will be explicit powers to combat
prejudice and tackle (hate) crimes.*
It will be
beyond doubt that EHRC can conduct an inquiry into a named body
(eg a particular police force)
EHRC will be able
to conduct an inquiry into a public authority’s performance (eg
a local authority or police force) in respect of its obligations
under the Human Rights Act.*
The EHRC will be
able to compel evidence in an inquiry, investigation or
assessment without the authorisation of the Secretary of State.
Currently the Secretary of State's authorisation is needed to compel evidence,
except in the case of a “belief” investigation.*
The EHRC will be
able to enter into binding agreements in lieu of enforcement
action with third parties about what steps they need to take to
prevent or end discrimination, where it has formed a suspicion
that acts of unlawful discrimination or harassment may have
taken place. Such agreement may be entered into before, during
or after an investigation.
The EHRC will be
able to enter into a binding agreement with a public authority
as an alternative to issuing a compliance notice for a breach of
a public sector specific duty. *
The EHRC will
have a significant regional presence, which will allow it to
work at a much more grass-roots local level than the current
commissions have been able. Furthermore, there is a full
commitment to maintain existing support for local race equality
work.
EHRC will be under a statutory duty to prepare, and consult on, a strategic
plan.
EHRC will be under an obligation to monitor progress on equality and human
rights in the UK in and publish these findings in a “State of
the Nation”-style report.*
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