Equality & Human Rights in the 21st Century The Scottish Context
June 2004
Equality & Human Rights in the 21st Century - The Scottish Context
Introduction
his briefing paper has been prepared by Scottish Council for Voluntary T Organisations (SCVO) in partnership with the Scottish Civic Forum (SCF), as mandated by the Scottish Equalities & Human Rights Reference Group (see below for more detail on the Group: `The Scottish Context'). The aims of the paper are:-
· To provide information on the changing legal and institutional landscape of equalities and human rights; · To signpost to other sources of information, support and advice; · To encourage responses to the current UK Government consultation on the creation of a Commission for Equalities and Human Rights (CEHR)
The briefing is targeted at organisations and individuals from all sectors. It is available in pdf format or hard copy and further copies can be obtained from SCVO, the SCF and the Scottish Executive Equality Unit at no cost. In addition to the briefing, there will be a series of regional information and consultation events facilitated by the Scottish Executive Equality Unit [see section below : `Next Steps']
The Process
n the 30 October 2003 the UK Government announced its intention to O establish a new body, the Commission for Equality & Human Rights (CEHR). This followed an earlier UK government consultation "Making It Happen", launched in October 2002 where proposals for a single commission were first mooted. The announcement proposed that the CEHR would have a remit across Great Britain (thereby excluding Northern Ireland) and would bring together the work of the three existing Equality Commissions (the Equal Opportunities Commission (EOC), the Commission for Race Equality (CRE) & the Disability Rights Commission (DRC) and would take responsibility for the new legislation on religion and belief and sexual orientation in 2003 and on age in 2006. It would also, for the first time, create an institutional framework for the promotion of a culture of human rights. In pursuit of this objective, the UK Government established a Task Force of equality, human rights & public policy organisations to advise on the role, 2
Equality & Human Rights in the 21st Century - The Scottish Context
functions, priorities and activities of the proposed Commission and in preparation for a White Paper. The Task Force included one representative from Scotland (John Wilkes from the EOC) and one representative from Wales (Teresa Rees, University of Cardiff). On 12 May 2004, the UK Government (Department of Trade and Industry, DTI) published a White Paper, "Fairness for All A New Commission for Equality & Human Rights". Patricia Hewitt (Trade and Industry Secretary), at the announcement, said "Everyone of us should have the chance to fulfil our potential, live with respect and dignity and not face the fear of prejudice, discrimination and hate.... The CEHR will bring together knowledge and experience to overcome and challenge all types of discrimination and will have a broader range of tools to tackle the complexities of our diverse society."
The deadline for responses to the White Paper is 6 August 2004.
Following the White Paper consultation, there will be a transition period that will include the establishment of a steering group to manage the planning and creation of the CEHR. After the passage of the Bill through Parliament, and receipt of Royal Assent, the CEHR will exist in shadow form until it becomes fully operational. The shadow CEHR will include three transition Commissioners, one from each of the existing Equality Commissions to provide continuity and use the breadth of existing expertise. The launch of the CEHR will not take place before the end of 2006 at the earliest.
The White Paper
he White Paper sets forth a vision for a new Equality and Human Rights T Commission. In the foreword to the White Paper, Tony Blair, states it "will be responsible for promoting equality throughout our whole society... [and] will also, for the first time, provide institutional support for human rights". The Government also identifies a number of benefits which will accrue from the introduction of the CEHR, including:- · The creation of a strong and authoritative champion for equality and human rights; · Improved tackling of barriers and inequalities and multiple discrimination - through a cross-cutting approach and a more coherent approach to enforcing discrimination legislation; 3
Equality & Human Rights in the 21st Century - The Scottish Context
· Accessible and user-friendly advice and support to individuals, employers and service providers through a single point of contact; · More effective promotion of improvements to the delivery of public services; · The promotion of good relations among different communities. The White Paper outlines a number of key areas on which it is seeking views and comment. These include:-
Engaging and Working with Stakeholders: `Stakeholders' of the CEHR include the voluntary sector, trade unions and employers and service providers in the private and public sectors. The Government states its intention to place the CEHR under an obligation to produce and consult on a strategic plan. In undertaking this, the CEHR will also be expected to "make its consultations timely, accessible and interactive, ensuring that it genuinely listens to groups and individuals."
The functions of the CEHR: This includes the key duties and powers, covering both equality and human rights that the CEHR will have to support its work. Tools to promote change: This includes the legal tools that will enable the CEHR to work, in the words of the White Paper, " strategically to secure change and improvement" and "empower it to take targeted action to enforce the law where needed." It is important to note here that, although the CEHR will have specific powers relating to the enforcement of discrimination legislation there will not be additional enforcement powers relating to human rights legislation.
The governance and structure of the CEHR: The White Paper states that, in practice, the CEHR will need "strong leadership, effective ways to engage with its stakeholders, and clear accountability to Government and the public".
Supporting key customers: This includes proposals on the ways in which the CEHR will work with individuals, businesses and the public sector. It is important to highlight paragraph 7.58 which states that the "Government now intends to take concrete steps to implement its longstanding commitment to introduce a duty in public bodies to promote equality of opportunity between women and men". 4
Equality & Human Rights in the 21st Century - The Scottish Context
National and regional dimensions: The White Paper states that the "CEHR will work to support equality and human rights across the whole of Great Britain, but a key priority will be responding to the particular need of both Scotland and Wales".
In the main the White Paper is looking for responses to five key questions:
Question 1 How can the CEHR ensure that all stakeholders have meaningful opportunities to shape the priorities and how it works?
Question 2 We would welcome views on whether the CEHR should be able to continue to support cases which have drawn on both discrimination & human rights arguments, after the discrimination element of the case has fallen away?
Question 3 What other areas of activity should the CEHR support at local level to further its overall mission to promote good relations between different communities?
Question 4 We would welcome comments on the strategies for working with individuals, businesses & the public sector.
Question 5 What other activities should the CEHR carry out a regional level? Is the mixed approach contracts, partnership & co-location an appropriate way to develop the CEHR's regional presence?
Although the focus of the White Paper is on these five questions people are encouraged to respond on any other specific or broad ranging issues or concerns they think should be addressed. Examples identified by the Scottish Equalities and Human Rights Reference Group are provided below:
· the disparity in resourcing between existing and the new equality strands, particularly as support for the new strands (and human rights work) is largely located in the voluntary sector; · the extent to which a new `combined' Commission will bring added value and synergy in tackling discrimination, particularly multiple discrimination, and in promoting human rights; 5
Equality & Human Rights in the 21st Century - The Scottish Context
· the inconsistency in legal protection offered to different groups in society which could be evened out through the upward harmonisation of legislation through a Single Equality Act (ie all groups and individuals protected by the legislation would receive the same level of protection); · the nature of support and legal representation offered to individuals through the CEHR; · the proposed extension of a duty on public sector bodies to promote gender equality only to gender, but not a more wider ranging duty covering all equality strands (race is already covered and a public duty in respect of disability is proposed in the Disability Bill) · the distinction between equality and human rights in terms of the proposed enforcement powers of the CEHR and how a human rights culture will become embedded without sufficient legislative underpinning; · the proposed creation of a CEHR Committee on disability, but not on any other specific equality ground.
The proposed creation of the GB-wide Commission for Equality and Human Rights would be a major change in the promotion and effective enforcement of equality mainstreaming and human rights standards. The extension of legal protection and institutional protection to groups in society who routinely experience discrimination; an approach which recognises the complexity of prejudice and multiple discrimination; and an overt recognition of the need to promote human rights is to be welcomed. As is the recognition of the devolved context of Scotland in proposed structure of the Commission.
The Scottish Context
here has been a keen interest in Scotland to develop a distinct Scottish T perspective on the proposals for the creation of the CEHR and to feed this into the UK Task Force. The Scottish Equalities Co-ordination Group (ECG) initially led the debate, comprising the Scotland Offices of the three existing Equality Commissions, the Equality Network, Age Concern Scotland, the Scottish Interfaith Council & the Scottish Human Rights Centre. The ECG also has observers from COSLA, the Scottish Executive Equality Unit, the Scotland Office & the Scottish Parliament Equal Opportunities Committee. Following the establishment of the UK Task Force, the Scottish Executive Equality Unit facilitated the establishment of a Scottish Equalities & Human 6
Equality & Human Rights in the 21st Century - The Scottish Context
Rights Reference Group. This group brought together a number of organisations from the different equality strands, commissions, businesses, unions and civic Scotland. Its purpose is to act as a consultation and support mechanism for the Scotland representative on the Task Force. The recently launched Scottish Equalities & Human Rights Coalition (facilitated by SCVO) will also feed in a distinct voluntary sector perspective to the process of consultation and institutional change. The Coalition was established to offer an independent forum to share skills, knowledge and experience across the equality and human rights spectrum and to demonstrate the capacity and expertise in the voluntary sector to work jointly on equality and human rights concerns. The Scottish Equalities and Human Rights Reference Group in its work identified a number of key issues that were fed into debate at the Task Force. Many of these were accepted in principle (and reflected in the subsequent White Paper) to varying degrees. In general the Reference Group also sought to convey the strong message that the proposed Commission, in structure and function, needs to take fully into account the distinct economic, political, legal and civic context of Scotland. These key issues included:-
The Scotland Act Equality Definition It is important that, in Scotland, the CEHR is empowered to operate within the broader range of equality grounds identified in Schedule 5 of the Scotland Act 1998 and not limited only to the six equality areas defined under current or impending UK legislation (gender, race, disability, age, sexual orientation and religion and belief). Schedule 5 allows the Scottish Parliament to encourage (other than by prohibition or regulation) equal opportunities and the observance of the equal opportunities requirements and to place duties on Scottish public sector bodies to have due regard to the need to meet the equal opportunity requirements. The Schedule goes on to define equal opportunities in a broad sense: "the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions". The White Paper acknowledges this context and proposes that the CEHR be allowed to "be involved in work related to equality of opportunity as set out in the Scotland Act 1998 (which are broader concepts than the six protected 7
Equality & Human Rights in the 21st Century - The Scottish Context
groups covered by existing discrimination legislation)".
The Scottish Parliament and Scottish Executive It is vital that there exist formal links between the CEHR and the Parliament and Executive. The White Paper recognises the role of the Scottish Parliament in tackling "equality issues as an integral part of [its] policymaking and legislative approach, especially in the way in which devolved public service are delivered". The White Paper proposes a "requirement for the CEHR to prepare reports on its activities in Scotland... to be laid before the Scottish Parliament" and suggests that the Commission, through its Scotland Office, will be able to continue the provision of advice to the Scottish Executive on the equality impact of policy and proposed legislation "as well as providing the Scottish Executive with advice more generally."
Scotland Representation on the CEHR The White Paper specifies that provision in legislation be made for the "appointment to the CEHR Board of one Board member with special knowledge of Scotland .... made with the agreement of the Scottish Executive Ministers.. to underpin close working with the Commission". The Scottish Reference Group called for there to be two Board members representing Scotland (and two for Wales) and also recommended that all Commissioners on the CEHR should have a good understanding of constitutional matters and the impact of devolution as part of their overall remit.
Establishment of a CEHR Scotland Committee The White Paper proposes the "establishment of a Scotland committee to set priorities for and oversee the work of the CEHR in Scotland". It is proposed that this Committee will have delegated powers of decision-making on matters relating to the CEHR's work in the devolved equality context and a role to monitor and review work currently under way and to provide a specific Scottish perspective on the development of GB priorities and their delivery in Scotland. It is also proposed that the Scottish Committee be chaired by the CEHR Board member with detailed knowledge of Scotland to ensure close coordination. The Scottish Reference Group also recommended that appointments of both the Scotland Commissioner and members of the Scotland Committee be subject to a transparent and public process.
CEHR & the Scottish Human Rights Commission The White Paper specifies that it "will be important for the CEHR to have an 8
Equality & Human Rights in the 21st Century - The Scottish Context
effective working relationship with bodies concerned with equality and human rights in Scotland. The Scottish Executive is currently developing proposals for the establishment of a Scottish Human Rights Commission (SHRC) and it will be important for the CEHR to have an effective relationship with this body. The expectation is that the SHRC will take a clear lead in promoting human rights in devolved policy areas while the CEHR will act in non-devolved areas". Evidently, there will need to be clarity regarding the devolved competencies of a Scottish Human Rights Commission, and in relations both with the UK CEHR and its Scotland Office and Committee, and a synergy between the enforcement of anti- discrimination legislation and the promotion of human rights.
The Scottish Voluntary Sector
he voluntary sector has always been in the vanguard of efforts to promote T and protect equality and human rights. At present, only the equality `strands' of race, gender and disability have both protective legislation and an overarching commission. Campaigning, support, advocacy and advice on the other (recognised and invisible) equality strands and on human rights has largely been confined to the voluntary sector where a high level of experience and expertise has been developed. However, this has not been reflected in a commensurate level or resources and there will be a huge challenge in creating an appropriate infrastructure for the new strands of sexual orientation, religion and belief and age and for human rights, support for which has largely been located in the voluntary sector. The White Paper stresses that engagement with voluntary and community sector organisations, "particularly those led by and working for individuals who experience discrimination, will be crucial to the CEHR's success". The White Paper also goes onto highlight the need for "ongoing dialogue" with the sector and the awareness that "in some sectors organisations will need support to build their ability to engage with the CEHR". In general voluntary organisations, and the sector as a whole, have an ethos and practice, which embody active engagement and meaningful consultation with groups and individuals who experience discrimination and human rights abuses. The CEHR at a UK and Scottish level should recognise and support the sector's role in this regard if it is to achieve "wide awareness, ownership and understanding of its work". As highlighted in the White Paper, the Voluntary Sector Compact will form a critical framework in terms of how and at what pace the relationship between the voluntary sector and the CEHR develops. 9
Equality & Human Rights in the 21st Century - The Scottish Context
Next steps
he Scottish Equalities and Human Rights Reference Group is planning to T hold information is planning to hold information and consultation events across Scotland in the summer leading up to the 6 August deadline for responses to the White Paper. These events will be held on:
13 July Edinburgh: MacDonald Holyrood Hotel: 12.30pm 3pm 14 July Dumfries: The Station Hotel: 12.30pm 3pm 20 July Inverness: Marriot Hotel: 4pm 6pm
Further information on these events, and to book a place, can be obtained from Caroline Smith at the Scottish Executive Equality Unit, Caroline.Smith@scotland.gsi.gov.uk or on 0131 244 2309
The Scottish Equalities & Human Rights Coalition will next meet on:
15th July Glasgow: The Radisson Hotel 11am 3pm
where voluntary organisations will debate the implications of the White Paper. For further information on the Coalition please contact Louise Carlin at SCVO louise.carlin@scvo.org.uk
Resources · The White Paper DTI White Paper "Fairness For All A New Commission for Equality & Human Rights" http://www.dti.gov.uk/
· Equality & Diversity: Making It Happen Consultation Paper http://www.womenandequalityunit.gov.uk/research/pubn2002.htm#making _ithappen
· CEHR Task Force papers can be found on the Women and Equality Unit website. http://164.36.253.98/equality/project/task_force.htm
· CRE Statement on the CEHR White Paper, Dated 12 May 2004 http://www.cre.gov.uk/media/nr_arch/2004/s040512.html 10
Equality & Human Rights in the 21st Century - The Scottish Context
· EOC Statement on the CEHR White Paper Dated 12 May 2004 http://www.eoc.org.uk/EOCeng/EOCcs/News/12maycehr.asp
· DRC Statement on the CEHR White Paper Dated 12 May 2004 http://www.drc.gov.uk/newsroom/newsdetails.asp?id=659§ion=1
Websites SCVO Equalities Website www.scvo.org.uk/equalities Forum on Discrimination www.forumondiscrimination.org.uk Scottish Human Rights Centre www.scottishhumanrightscentre.org.uk Scottish Interfaith Council www.interfaithscotland.org Age Concern Scotland www.ageconcernscotland.org.uk Engender www.engender.org.uk Equality Network www.equality-network.org Stonewall www.stonewall.org.uk Inclusion Scotland www.inclusionscotland.org Oxfam Scotland www.oxfam.org.uk/about_us/scotland Outright Scotland www.outright-scotland.org.uk Scottish Refugee Council www.scottishrefugeecouncil.org.uk Commission for Racial Equality www.cre.gov.uk Disability Rights Commission www.drc-gb.org Equal Opportunities Commission www.eoc.org.uk Department of Trade & Industry www.dti.gov.uk Equality & Diversity Forum www.equalitydiversityforum.org.uk Scottish Executive www.scotland.gov.uk/library3/social/wtem- Equality Strategy 00.asp Scottish Executive Equality Unit www.scotland.gov.uk/Topics/?pageID=378 STUC www.stuc.org.uk
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Other versions of the document in Braille, large print, other languages, for people with learning difficulties or on audio cassette are available on request. Please contact Denise Gildea, tel: 0141 221 0030 or email: denise.gildea@scvo.org.uk
Tha tionntaidhean eile den sgrìobhainn ann am Braille, ann an clò mòr, ann an cànanan eile, do dhaoine a tha mall sa chlaisneachd agus air cèiseag-chlaisneachd rim faotainn ma thèid an iarraidh. Cuiribh fios gu Denise Gildea, fòn: 0141 221 0030 no post-dealain: denise.gildea@scvo.org.uk