PATRICK DIAMOND
Visiting Research Fellow, Public Policy Unit, DPIR, University of Oxford

Introduction

The creation of any significant national institution is always a fraught and contested process; the EHRC was certainly no exception. But it is very important to situate the development of the Commission within its historical context, and to take a wider view of the structural, institutional and political forces that have shaped the EHRC’s foundation. One astute academic observer has written that the history of British equality legislation can be characterised as ‘fumbling towards coherence’ (O’Cinneide, 2007). However, most public institutions spend much of their lives fumbling towards coherence as the site of conflicting demands, priorities, and political claims. Given the nature of the EHRC’s agenda, and the contested normative and intellectual terrain of equality and human rights, one could hardly expect it to be much different.

So we need to approach an analysis of the EHRC’s performance with a realistic set of expectations about what it might feasibly have delivered. Indeed, it is precisely the absence of reasonable expectations, particularly on the part of government ministers in the previous Labour administration, which has done so much to inhibit the successful development of the EHRC. The Commission had no coherent plan or blueprint in place when it was founded; the infrastructure and organisational wiring of the new institution barely existed; the harmonisation process for transferring staff from the legacy bodies to the new institution was chaotic. Yet the demands from government were incessant from day one; this was positively harmful. It has been argued that governments tend to overestimate what they can achieve in the short-term and under-estimate what they can achieve in the long-term. Nowhere is this maxim more appropriate than in relation to the EHRC.

The EHRC and the Labour Government

 

Of course, the Labour government’s record on equality and human rights was in many respects admirable. After all, Labour introduced the Human Rights Act and presided over the most far-reaching liberalisation of British national life since the 1960s, culminating in the equalities legislation of 2010 which sought to create a harmonised framework of equalities legislation and the creation of the EHRC itself. Moreover, equality concerns were increasingly ‘mainstreamed’ into the policy-making arena of central government departments, although not all performed so well.

At the same time, although the government was committed to the formation of a single equality body by the 2005 election, the preparatory work undertaken to inform the constitution of the new body was relatively weak. The Equalities Review (2007) was an admirable effort to synthesise empirical data and recent academic research, but it inevitably struggled to pin down some of the more complex theoretical and conceptual debates. The relationship between ‘equality strands’ and ‘multiple’ or ‘intersecting’ inequalities, for example, was never clearly thought through. The link between the Commission’s three mandates of equality, human rights and good relations had never been fully explored or explicated prior to the EHRC’s foundation. So there were some significant gaps to fill from day one.

Another separate issue concerns the institutional relationship between the Commission and central government. The EHRC is an independent body, a necessary requirement in order to be formally recognised as a human rights agency internationally. Yet the degree of day to day intervention and interference, particularly through the Government Equalities Office (GEO), was significant. Some officials saw the EHRC as merely the delivery-arm of central government, contradicting the very basis of an independent commission. To some extent, of course, all arms-length public bodies are subject to micro-management regimes and targets as a legacy of the new public management philosophy inaugurated in the 1980s. But it was particularly unhelpful in the first few years of the Commission’s life, and made it harder to establish effective relationships across government.

Learning from experience

It is important to constructively appraise the EHRC’s performance since it was founded nearly four years ago, and to consider what might have been done differently in order to avoid mistakes that have undoubtedly harmed the Commission’s reputation in the wider public domain. As has been hinted already, one major lesson is that rushing the formation of the new body turned out to be a serious error. At its inception, the EHRC commanded low confidence from major stakeholders, not surprisingly given that they had little idea of what to expect from the new organisation. It may have been wiser to preserve ‘shadow’ legacy bodies for a further period, while building capacity in the ‘new’ strands and human rights.

There is also the issue of how to relate to government. Understandably, the EHRC was reluctant to challenge ministers and its ‘sponsor’ department at the outset, but a more combative and constructively critical relationship with central government from ‘day one’ might have been advantageous. After all, many of the Labour government’s targets and strategies relied on improved equalities performance. There ought to have been the strong basis for a constructive working relationship. Clearly, the institutional relationship with the new Coalition government remains challenging.

Finally, the EHRC ought to have been more confident about learning from models and methods of change that have been successfully applied in other fields and sectors. Clearly, there is always a case for tough legal action and litigation where necessary, and the Commission has to flex its enforcement muscles and powers effectively. But there are other means of creating a more equal and just society. There is a burgeoning literature on the importance of behaviour change, how to reshape citizen’s values and attitudes which remains highly pertinent to equality and human rights (Halpern, 2008). There are also important lessons to be learned from two decades of regulatory policy, in particular how regulators in other sectors have gone about protecting and advancing the interests of vulnerable groups in society.

In reality, there is not a choice to be made between ‘incremental’ and ‘transformational’ change. All institutions pursue both, taking measured and steady steps while also identifying levers that can produce major advances and breakthroughs in delivery and performance. For the EHRC, the task of defining the most appropriate and judicious mixture of levers and interventions goes on. Given the ingrained nature of structural disadvantage in Britain, a context exacerbated by the global financial crisis, as well as ongoing concern about the status of our most basic liberties and freedoms, it appears there is not a moment to lose.

References

Halpern, D. The Hidden Wealth of Nations, Cambridge: Polity Press, 2008.

O’Cinneide, C. ‘Fumbling towards coherence: The slow evolution of equality law in England and Wales’, Northern Ireland Legislative Quarterly, Volume 57, pp 57-102, 2007.