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Equality & Diversity- Making it Happen

30 March 2010

The Citizens Advice service welcomes the opportunity to comment on the options for institutional support for equality legislation. We were pleased to have the opportunity to participate in the national regional seminars and events as part of the consultation process.

In 2001/02 Citizens Advice Bureaux helped people resolve 5.7 million problems. Our advice giving covers a very wide range of issues, including consumer rights, debt, employment, housing and immigration problems. We are in touch with many millions of people each year who have experienced unfair treatment and discrimination. We have noted that whilst our overall number of enquiries has fallen slightly the proportion concerning discrimination problems has continued to increase. Over the past five years there has been a 17 per cent increase in discrimination problems overall, the number of employment problems concerning discrimination has increased by 37 per cent. Our evidence would suggest that there is a considerable need for action on promoting equality and tackling discrimination to be enhanced and improved in its effectiveness. Our comments on the proposals to create a single equalities body are made with this objective in mind.

In this response we look at the need for legislation to underpin the creation of a single equalities body; a model for a single equalities body; implementation issues, the role of information and advice and concluding remarks.

1. The Need for Legislation

For institutional change in this area to be effective it must be based on sound and consistent legislation. It seems likely that a new Equalities Act would need to be introduced which is based on a better, clearer definition of equality while recognising and retaining the distinctive features of existing legislation specific to particular areas and aspects of discrimination.
It will be impossible to create an effective single equalities body unless discrepancies in legislation, including for example the current weaknesses in disability equality legislation are addressed. The Disability Rights Commission has identified these as including, for example, gaps in application to public authorities and the lack of a positive duty on all public bodies to promote disability equality. The Citizens Advice service welcomes the Government’s announcement in January to bring in a new Disability Bill and hopes this will be developed within a framework of an overall equality legislation.

The strengths of existing legislation, for example the new duty to promote race equality, should be retained and extended to other types of discrimination so that there is a harmonisation of the framework. The greater the harmonisation of existing rights the greater the likelihood of bringing together the existing Commissions more effectively and efficiently and improving understanding on the part of businesses and individuals.

Moreover unifying legislation is likely to produce a more rational structure in a single body.

A single Equalities Act is also needed to place all equality legislation within a simplified and readily understandable framework. Individuals must be able to understand their rights and employers and other institutions and service providers must be able to carry out their legal responsibilities easily.

New legislation must also bring in new powers for the single equalities body to secure widespread compliance and tackle discrimination by being able to take actions on their own initiative, including by bringing class actions on behalf of a group of individuals. Consideration should also be given to ensuring that the new equalities body has injunctive powers, possibly modelled on the Stop Now enforcement regime for breaches of consumer protection legislation under the Enterprise Act 2002. Not only would such provisions enable more effective challenging of discrimination practices, removing the burden from individuals to initiate legal action, but enhancements to existing legislation would provide motivation to support a new institutional body.

2. A Model for a single equality body

The proposal for a single equality body offers the possibility of many benefits, especially in the long term:

  • a single body is likely to lead to a better understanding of discrimination, being able to look at discrimination in its wider context;
  • a single body could address all forms of discrimination. Discrimination cases do not always fall into neat categories. It is not unusual to have CAB cases brought under, for example, sex and race discrimination. This can be because the employee is uncertain about the reason underlying discrimination until further probing of the employer takes place pre-hearing (and even then it can still be unclear) or cases may arise where the employer has a ‘combined’ prejudicial attitude/treatment of the individual concerned because of their gender and their race.
  • a single body is likely to be able to tackle inequality more effectively. For example opportunities to work with major employers could, as a result, focus on all aspects of discrimination and equalities in their policies and practices. This is likely to be a far more effective way of working for all, the equality body, the firm and employees and consumers. A single body could, therefore, use opportunities to address inequality in a unified framework looking across all of the relevant policies and practices of a company or the organisation which the present bodies cannot do, unless they developed ways of working in a ‘joined-up’ fashion. There may, however, presently be a challenge to more joined-up working due to differences in formal powers and functions of the different bodies.

We have a number of major concerns about the creation of a new single equality body including the following:

  • the size of a single organisation could make it less responsive to local and individual needs than the present bodies are;
  • there could be disruption during the setting-up and settling-in periods where senior staff, and operations, are distracted by migration issues resulting in a period of loss of action (see also section 3 below)
  • it is uncertain whether independence from Government will be easier or more difficult to sustain with a single body. If leadership and governance arrangements are not sufficient to secure this the downside risk of the consequences is arguably more intense, as more issues are affected, than with three separate bodies;
  • there is potential for a dilution of focus and failure to recognise the unique dimensions of different types of discrimination;
  • there is a risk of a single body developing a hierarchy or setting priorities between different aspects of discrimination with constant competition for resources and a consequent inward focus.

The symbolic and psychological significance of the loss of the three existing Commissions for specific groups cannot be underestimated and must be addressed in the structure of a new single body. Any change must bring innovative solutions that take forward work on discrimination and bring clear and recognisable benefits.

It is crucial to recognise the specific nature of different types of discrimination. For example the death of Stephen Lawrence and the events in Oldham, Burnley and Bradford highlight starkly the distinct and profound operation of racism in UK communities. Distinct and targeted responses such as the ‘Kick Racism out of Football’ initiative are required in some cases if action is to be effective. Without a dedicated focus on different types of discrimination within the new single equality body, the distinctly different causes will not be effectively addressed and challenged.

A possible model for a single equality body which retained the strengths of the existing system where there is specific focus whilst also generating unified approaches to the work of the single organisation would be to establish Commissioners or Deputy Chairs with responsibility for each equality area who report to the Chair, or ‘Head’ of the organisation who would lead the organisation. This would ensure that existing experience and momentum especially in tackling disability discrimination are not lost while allowing for the creation of leadership on policy and practice across all areas of equality and, administratively, bring consistency and efficiencies in the provision of core functions such as human resources, information technology, accommodation management, finance, public relations and marketing.

A body would need to be able to address systemic discrimination while spearheading the different distinct grounds for discrimination. The capacity for research, preventative work and campaigns needs to be enlarged. This is crucial if we are to achieve lasting change and community cohesion in a society where discrimination and inequality are widespread. Indeed strong and explicit promotional powers must be built into the legislation for any new bodies, redressing existing weaknesses in the current Commissions’ powers.

For a new body to be effective and hold the respect of different groups it must be independent and there must be clarity about formal accountability mechanisms. This independence must be taken beyond an assertion and embedded in legislation, including provisions about direct reporting to Parliament, and should be capable of direct scrutiny by a relevant select committee.

A new single body must also have powers to obtain information, investigate and audit and require organisations to take action to remedy issues or desist from actions of policies which result in unjustifiable discrimination or inequality of treatment. Such provisions are widely recognised means for identifying problems and achieving change.

A new body must also reflect the new devolved structures in Scotland and Wales and build mechanisms for regional and local engagement and participation. The understandable fear that a new body may be more remote, and that it will lead to a wider gap between communities and the body with a resulting diminution in capacity to promote the views and causes of those communities must be addressed institutionally by establishing local structures and mechanisms to ensure that local representatives and grass root groups can participate in and influence the agenda of the new body.

A new single equalities body must recognise the benefits of transparent, open and accountable processes to support such participation especially for those groups who are most excluded and marginalised. This must include practical matters such as providing information to groups on how to use consultation mechanisms and the provision of accessible transport, translation, interpretation and childcare services to enable people to participate in consultation exercises. Self-advocacy for people with learning disabilities must be supported.

Outspokeness and challenge must be acknowledged as healthy and beneficial if a new body is to be responsive and able to move forward as understanding of the operation of discrimination and the solutions develops. The mechanisms and structures for involving local communities do not necessarily have to be organised by the same body or part of the organisation that delivers front line advice to individuals and firms. Different routes can be taken to secure the delivery of each activity of, respectively, stakeholder involvement in policy development and design of the services provided by the organisation and giving information and advice in individual cases.

As the consultation document acknowledges, the best employers recognise that fairness increases productivity but there is still much that can be done to inform employers and service providers so that new legislation is seen as an opportunity not simply a burden. A new body must have the legal ability, as well as the capacity, to work with employers, service providers, traders and others promoting innovative solutions and best practice models. In CAB experience, many small employers will respond openly, even enthusiastically to the provision of information and advice and many CABx have initiated events for employers, sometimes bringing in other partners such as the TUC.

The consultation document proposes making some changes in the way in which the law is enforced so that complaints can be resolved more quickly. Speed is most likely to be achieved if the solutions can be locally delivered. Conciliation and flexible approaches to enforcement are to be welcomed and placing both functions in the same body allows greater flexibility about which approach is adopted in particular circumstances. However without more detail about a more flexible enforcement model, it is difficult to envisage how this might operate, especially since recent initiatives such as the new ACAS conciliation procedures have rarely been used. Realistic alternatives to employment tribunals are needed. Of course the promotion and adoption of best practice is far preferable to either individuals needing to resort to formal mechanisms to obtain their rights or enforcement action by third parties. However the strategic use of enforcement powers is critical, along with the possibility to bring class actions and use injunctive powers in appropriate cases.

3. Implementation of a new model

A single equality body contains inherent risks given the starting point of three established individual Commissions. The management and planning process of establishing a new body could divert people away from work to tackle discrimination and inequality. It is crucial that such a change is managed effectively. If the body is seen to be having impact immediately, there is likely to be much greater motivation to deal with the change constructively. This could be achieved by establishing a dedicated team, or shadow organisation, early on to deal with the merger and assimilation of organisational and structural issues, enabling policy leaders to move forward with some key wins on equality. This team would need to have high-level reporting line to the head of the new organisation. It would be important to acknowledge the anxieties which people will be approaching such a change. Such matters about implementation must be addressed openly from the top level of the new body.

If initially only certain functions are merged, for example, HR, Finance, IT, PR and marketing, then it would be important to build in expectations from the outset that this was transitional, and that other functions such as education and research will be moved closer together in due course.

The consultation document does not deal adequately with the transitional arrangements for the new strands from 2003 until a new body is established. If Citizens Advice Bureaux are to be “well placed” to deal with requests for help (paragraph 10.6), the Citizens Advice service would need additional resources, specifically for training and second tier consultancy support for front line advisors.

4. The role of information and advice

A more co-ordinated model for front line advice on discrimination and equality issues is needed. This does not necessarily require the development of additional specific services. People often do not present to advice agencies with a ‘discrimination problem’, the discrimination may come to light as the underlying problem or cause of an employment, housing or consumer related enquiry. A generalist agency is, therefore, often better placed to reach people suffering discrimination especially with improvements in access to advice services. As already stated a locally delivered service is also more likely to be able to resolve matters quickly, including through negotiation, and avoid costly and lengthy court or tribunal action.

The existing Commissions have not had sufficient resources to build a strong and sufficiently responsive relationship between themselves and individual Citizens Advice Bureaux in their frontline role of providing advice and support to other agencies, for example providing telephone consultancy back up. Attempts to secure training and other support for bureaux have not succeeded and initiatives to work in partnership have started with good will but lost momentum. Nevertheless we believe such partnerships are essential and must be developed. The creation of a single equality body could provide the opportunity to address this issue on a lasting basis – but the new body would need to have the power to make expenditure to provide support and training to intermediary bodies on whose activities it relied in order to achieve its objectives and carry out its functions.

As well as the provision of training, consultancy support and funding for improved access there needs to be direct funding for agencies such as Citizens Advice Bureaux if they are expected or assumed to play a fuller role in future in advising and representing individuals and providing feedback to policy makers on discrimination problems.

5. Conclusions

This response addresses three aspects of the proposals in Making it Happen. It is argued that a new body should only be established after new legislation is introduced, bringing all equality legislation together on an equal footing. Essential functions for a new body are identified and approaches to minimise the worst effects of a transitional period while a new body is established are briefly sketched. Finally it is argued that a strategy for institutional support for equality legislation must include the provision of access to front line advice. The Citizens Advice service would welcome the opportunity to discuss how it could contribute to such a service.