.
The committee had heard from witnesses including Doug Paulley, who had been assisted by the EHRC to bring a claim against the company, First Bus, regarding the use of wheelchair spaces (see
Paulley v FirstGroup Plc [2017] UKSC 4; May 2017
Legal Action 26). Paulley said that the ‘enforcement mechanisms do not work for me’ and that people who try to enforce their rights are ‘punished in deeply personal and unpleasant ways’ (para 14, page 7). In his view, the Disability Rights Commission had been ‘much more proactive and easy to interact with’, but had ‘lost their mojo completely when they joined the other equality bodies and became the Equality and Human Rights Commission’ (para 28, page 11).
While the committee believes that the EHRC has made some progress ‘in setting priorities and numerous restructures’, the report notes it is still failing to have ‘the kind of focus on impact and influence that good management should be delivering’ (para 97, page 29). The committee is ‘deeply concerned’ that the EHRC could not challenge an organisation like the BBC in ‘a reasonable amount of time’ (para 68, page 24). Despite the high profile of the dispute over equal pay at the corporation and the availability of evidence in the public domain, the report expresses concern that the BBC managed to delay the EHRC inquiry into its pay policies for 18 months.
In June this year, the EHRC published its report on the failings of the legal aid system (
Access to legal aid for discrimination cases; see July/August 2019
Legal Action 4), which concluded that ‘recent years have seen access to justice restricted to such an extent that many people experiencing discrimination are not getting the help they need to seek redress’ (page 5). The committee supports the findings of the EHRC’s report on legal aid and notes the government’s recognition of the failure of the telephone gateway system, which, since the Legal Aid, Sentencing and Punishment of Offenders Act 2012, members of the public have been forced to use to access advice on discrimination law. Its recommendations, though, go further than those of the EHRC. The committee is calling for an overhaul of the legal aid merits test for discrimination cases to incorporate a ‘presumption that enabling discrimination cases to be brought is in the wider public interest’ (para 206, page 58); the EHRC had only recommended a tweak to the guidance on considering the wider impact of bringing a case.
The proposal to beef-up the rules on legal aid to take into account the wider public interest in bringing discrimination cases reflects the committee’s call for a ‘fundamental shift in the way that enforcement of the Equality Act [2010] is thought about and applied’ (para 23, page 9). It also says that it ‘beggars belief’ that the government has not done more to require the enforcement of equalities law in the work place. It is calling on the government to require regulators and other government bodies to play a more proactive part in enforcing the Act (page 4).
Like many public services, the EHRC has faced funding and organisational difficulties in recent years due to government austerity policies. However, the report’s findings on its lack of beef when it comes to enforcing the law are fair. Not so long ago, the leadership of the EHRC gave the impression that enforcement action using the courts was their lowest priority. Things need to change urgently if discrimination in all its forms is going to be countered effectively. The thrust of the report’s main argument seems to be that, in the future, people like Doug Paulley should be able to rely on a regulator, ombudsman or other quasi-government body to enforce their rights. It’s an approach that is feasible, provided it can counter accusations of unnecessary ‘red tape’ and ‘nanny state’ that might emanate from some in government.