Has the fight for equality and human rights been strengthened by the advent of a unified Public Body? Polly Botsford reports


‘We’re not a political correctness police force’, says John Wadham, the legal group director at the new Commission for Equality and Human Rights (CEHR). ‘Our task is to ensure we can all maximise our life chances.’


When the nascent commission began its work in October 2007, it reflected more than an amalgamation of the previous commissions – it demonstrated a philosophical shift, from the three bodies which represented discrete, specific spheres of concern (race, sex and disability discrimination), to a body with a broader notion of equality and human rights for everyone in their daily lives.


The CEHR, headed by Trevor Phillips, with its London office based just around the corner from Ken Livingstone’s City Hall, has a much larger budget of £70 million (rumoured to be twice the combined budget of the three previous commissions). Its remit extends from policy through to litigation and enforcement. It concerns itself not only with issues of gender, race and disability, but now also age, religious and sexual orientation discrimination. In addition to these six strands, it is there to ‘ensure compliance’ with the Human Rights Act.



For specific communities, such as the gay, lesbian and bisexual community, this is the first time they have had a statutory body concerned with their affairs. Jonathan Finney, senior parliamentary officer at Stonewall, the gay rights group, says this is a welcome beginning: ‘We hope it will raise awareness of existing legislation, not least among the communities themselves, who are often uncertain of their legal protections in the workplace, and in their access to goods and services.’



But the CEHR is not only a platform for specific constituencies such as the gay community, it is also the guardian of the Human Rights Act, the first body in Britain with the power to inquire, intervene and bring judicial review proceedings on human rights issues. It is tasked with bringing to the fore how human rights can help ordinary people in their daily lives, as Courtenay Barklem, the Law Society’s human rights adviser, explains: ‘There was an elderly couple who defended their right to family life. The local authority had to reverse its decision to separate them after 65 years of marriage. Thus, when the husband was taken into a care home due to illness, his wife was allowed to move in with him. It is a matter of education and information. It could have been better provided if an official human rights body had been created from the outset. The commission is now in prime position to fill that gap.’



Mr Wadham, a solicitor who sprang to prominence as the director of Liberty before a spell as deputy chairman of the Independent Police Complaints Commission, believes that this bringing together of equality and human rights is long overdue. ‘If you look at the Universal Declaration on Human Rights, it starts: “All human beings are born free and equal in dignity and rights.” Its first two articles are about equality. Since the 1970s, Britain’s position has been different; we’ve had equality legislation, but we’ve been missing human rights. So now, we can rebuild the same connection between equality and human rights.’



However, controversially, unlike its powers relating to issues of equality, the CEHR does not have power to bring individual human rights cases. ‘The government didn’t want the commission to be inundated with human rights cases,’ Mr Wadham says. Instead, the CEHR has the power to intervene in cases where human rights issues are involved, by making its own submissions.



This will be a crucial tool, unavailable up until now, as Mr Wadham explains: ‘The House of Lords recently decided in YL v Birmingham City Council that the Human Rights Act doesn’t apply to private care homes. What that has done is take away protection for older people who are in non-local authority homes. We should have been able to make submission to court on that issue – and now we can’.



Kate Jopling, head of public affairs at Help the Aged, which is running a campaign to get the loophole relating to privately-run care homes closed, says the CEHR has highlighted to the government that this is ‘a huge glaring problem’, but, she says, ‘it would have been more powerful if it had had a voice during the case itself’.



The judicial review process is also considerably developed and is likely to see some interesting areas explored. Judicial review normally requires a party to show that it is a victim in a situation in order to bring proceedings. But the CEHR will not have to be such a victim. Mr Wadham provides an example: ‘Suppose we believe that the police’s stop-and-search powers under terrorism legislation are unlawful in relation to human rights because they focus on Muslim communities – we might decide to bring proceedings without having to actually have an individual case. Sometimes, the facts don’t deal with the real issue, so it is important that we would be able to do this without a victim.’



It is not only the addition of human rights which makes the CEHR different from its previous guises. Because it is not concerned with specific inequalities, but inequality as a whole, it will push the government towards ‘finishing the job’, as Mr Wadham puts it, which means not only bringing on to the statute books a new Equality Act, but also, according to Mr Wadham, ‘a constitutional equality guarantee’. He adds: ‘Legislation should be read in compliance with an overriding principle of equality.’



The CEHR can look beyond the six discrimination strands. Mr Wadham says there are clearly issues of income, capital and socio-economic discrimination. ‘Equal pay is problematic, not only about how much women earn during their working life, but also in relation to pension resources, that is their overall income. It is also the case, for instance, that public services are taken up more by some groups than others, which relates to poverty. The commission can look into these types of issues.’



Of course, there is some scepticism about what the CEHR can achieve: each outgoing commission had natural reservations that their constituency would miss out. Mr Phillips rebutted allegations that some areas of discrimination were more important than others: ‘We cannot start with a hierarchy of hurts,’ he told a conference on race in London before the CEHR opened its doors. Despite his assurances, there will be considerable attention paid to which areas are attracting the CEHR’s funds.



The body is also accused of being just a vehicle for political correctness. But the CEHR has, so far, gone out of its way to show itself not to be simply about the language we use. Before Christmas, in a bid to combat the usual rounds of accusations that political correctness has gone too far – that it had, for example, forced schools to cancel their nativity plays – Mr Phillips, in conjunction with faith leaders, made a statement encouraging schools and local authorities not to shy away from the essential Christian nature of the Christmas story. As Mr Wadham reiterates: ‘We don’t have a list of what people can and can’t say.’



But the task of overcoming tabloid distortions over human rights, in particular, is a significant challenge for the CEHR, as Mr Barklem explains: ‘For example, last summer, the Act was blamed by the media when an appeal court decided not to deport a convicted murderer to Italy. In fact, the court’s decision was primarily based on EU law, not human rights. The press had reported on the most controversial, not the main, issue – tarnishing the Act’s reputation.’



Interestingly, the public discourse is shifting. When, last month, Portsmouth defender Sol Campbell publicly complained that footballers’ human rights were being violated by the verbal abuse they receive from the stands, he did something new. He had not said it was an issue of racial abuse, to which only sections of the population can relate, but an issue of human rights, a subtle shift

of emphasis.



Lawyers and practitioners are keen to see the CEHR get stuck in. Frances Swaine, head of human rights at London firm Leigh Day & Co, and a specialist in cases involving individuals with learning difficulties, says: ‘Practitioners like myself are waiting to see the commission put its money where its mouth is. It has significant funding to support a certain number of cases each year and we are optimistic that it will do so.’



Mr Wadham believes that lawyers should, indeed, recognise the possibilities: ‘We’ve stepped up a gear and we can all really make a difference.’ Brave new commission, brave new world – perhaps.



Polly Botsford is a freelance journalist