Equality and Human Rights Commission: Disability Commissioner

Lord Shinkwin Excerpts

Thursday 10th May 2018 Grand Committee

Asked by

[Lord Shinkwin]

To ask Her Majesty’s Government what assessment they have made of the case for a disability commissioner on the Equality and Human Rights Commission.

[Lord Shinkwin (Con)]

My Lords, I begin by thanking the Prime Minister for her kind words in answer to a question asked by Philip Davies MP in the other place at Prime Minister’s Questions on 7 February. She described me as a champion of disability rights, and it is as a long-standing campaigner for disability equality that I have tabled this Question for Short Debate, because I believe it is crucial that we assess, on an ongoing basis, progress made towards that elusive goal.

I say “elusive” because 2020 will mark a quarter of a century since the introduction of the Conservatives’ Disability Discrimination Act. The sad fact is that we, as disabled people, are nowhere near attaining equality. By that, I do not simply mean equality with non-disabled people; I mean equality with the other protected characteristic groups covered by equality legislation.

We are so far behind as disabled people, not because we necessarily lack the determination or ability to catch up but because we are still too often denied the equality of opportunity to contribute and to succeed. Unlike other groups, we need reasonable adjustments to be made for us to be able to enjoy equal access to goods, facilities and services, whether commercial or statutory. The goal of equality might be the same, but the nature and extent of the disadvantage that goes with disability are so different that while mainstreaming disability might sound laudable in theory, in practice it means that disability, as the heaviest stone, falls to the bottom of the inequality pond. A prerequisite to it not being left at the bottom is a sharp focus on disability issues—the sharp focus provided by the DDA; the Disability Rights Commission, or DRC; and, following the DRC’s amalgamation within the Equality and Human Rights Commission, or EHRC, the focus provided by a disability commissioner. But now we do not have a disability commissioner because the post has been abolished, even if the need for such a position and the sharp focus it was meant to bring to disability issues has not.

Noble Lords will know from my previous contributions on this matter that I was not made aware of the agreement between the commission chair and the then Minister for Women and Equalities to abolish the position of disability commissioner until after I had been misled by that Minister of the Crown to believe that I was being appointed to that position, for which I had applied and been interviewed. Now it transpires that I was not the only one not to have been informed of the position’s intended abolition. I thank the Prime Minister for telling Philip Davies that she had not been made aware of the decision either, and I also acknowledge that the then Minister for Disabled People, Penny Mordaunt, who is now Minister for Women and Equalities, in addition to being Secretary of State for International Development, was not made aware either.

I know there is a Civil Service saying that, “We are where we are”—the implication being that one needs to accept a new reality and move on. I make it clear that I accept that the Government cannot insist that the EHRC reinstates the position, even if they wanted to, because the commission is independent. However, if the EHRC is independent, there is something that the Government can do—and, I believe, should do—both to extricate themselves and to move us on from where we are, which I am sorry to say is not a good place. They can express regret that a former Minister should have gone behind my back, the backs of disabled people and the backs of the Prime Minister and her ministerial colleagues and allowed the commission to do away with disabled people’s last distinctive, powerful voice. She did not have to do it. Indeed, I recently learned that one of her predecessors in the coalition Government blocked such a move and ensured that the position of disability commissioner was not abolished when the commission previously proposed that it should be. So there was a clear precedent, which she chose to break with, and in the process undermined disabled people and severely compromised the Government.

As I told Cathy Newman on “Channel 4 News” in November last year, this is not about me. When your disability has taken you to hell and back, it tends to put things in perspective. So, while serving as the disability commissioner would have been an honour, which I would have done to the best of my ability, what happens to me does not matter. I am not important; the position was. What concerns me far more is the message given by the involvement of the then Minister for Women and Equalities in the position’s abolition and the Government’s continued failure to dissociate themselves from her involvement, which it is clear that she did not inform—never mind consult—her ministerial colleagues about. It worries me that the Government seem not to appreciate the need for them to express a view, because the adoption of such a position amounts to a message in itself—a message that may be inadvertent but none the less is one of contempt, as if because it is only disabled people, they do not need or deserve the truth.

Speaking as a disabled person, disabled people deserve better than that. We deserve some respect and a clear answer. So I ask my noble friend the Minister if the Government are glad that the disability commissioner position has been abolished. Are the Government proud that a former Minister was involved in the position’s abolition, as I demonstrated she was with reference to two contradictory emails that I mentioned in the Chamber last November? If the Government are not proud, why do they not say so?

The Prime Minister, the Secretary of State for Work and Pensions, and the Secretary of State for International Development should not have to take the rap for a decision that I accept none of them was involved in making. Yet the Government’s silence on this matter means that that is exactly what is happening, because it has all the telltale signs of a cover-up, not necessarily by Ministers but by the Whitehall machine.

Some argue that because the commission is independent, the Government therefore cannot state that they regret a decision taken by a Minister without compromising its independence. I do not follow the logic of that argument. Surely to state one’s opinion of an independent body’s actions underlines and reinforces that independence rather than compromises it. The commission cannot have it both ways: either it is independent or it is not.

The fact is that your Lordships’ House was never meant to know what happened to downgrade disability by the taxpayer-funded body supposedly responsible for promoting and protecting our rights. As its chair told the Women and Equalities Select Committee:

“Lord Shinkwin has obviously chosen to make public some of this detail, which otherwise would be confidential”.


What an admission. If I am wrong—I would be happy to stand corrected—there is an easy way to prove it. If the Government and the commission have nothing to hide, let them put all records of contact about me and the disability commissioner position, whether between the commission, the commission chair, the Government Equalities Office, the then Minister for Women and Equalities, her private office, her special advisers, the Department for Education or any other external organisations, in the Library. All I am asking for, as a disabled person, is transparency. Surely that is fundamental to equality.

In conclusion, of course I think there is a strong case for a disability commissioner, otherwise I would not have applied for the position. But now it has been abolished, the case that the Government need to answer is why disabled people should trust them when they cannot even bring themselves to express regret for the involvement of a former Minister in the abolition of disabled people’s last powerful voice. As a Conservative, I believe we could have a much better story to tell, but we need to close this sorry chapter before we start the next one. I hope very much that my noble friend can help us do that and I look forward to her response.

--- Later in debate ---

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I start by thanking my noble friend for securing this debate and all noble Lords who have made such interesting points on the subject. I echo the words of the Prime Minister in February about my noble friend and the role he has played in this area and I am sure will continue to play. Before I move on to deal with the issue of an equality and human rights disability commissioner and the particular points made, I want to take a moment to reflect on the Government’s position on disability.

The Government are absolutely committed to improving the lives of people with disabilities and making the UK a country where everyone can achieve their full potential. The Government take action, including through legislation where necessary, to address disability discrimination. For example, we recently announced our intention to commence Section 36 of the Equality Act 2010, and our manifesto commits to change the Act to better protect people with fluctuating mental health conditions from discrimination. We provide support to people with disabilities and related conditions to help them live fulfilling lives and move towards—and, where possible, into—employment. We have invested over £130 million to improve work and health outcomes for people with disabilities and long-term health conditions, and the long-term unemployed. We have also provided an additional £19.3 million for the Jobcentre Plus Flexible Support Fund to help claimants with limited capability for work with extra costs that can be involved in moving closer to the labour market and into work.

To further improve our ability to spot and respond to discriminatory practice, the Equality Advisory and Support Service—the equality and human rights helpline—refers cases which may have specific strategic significance to the EHRC for possible enforcement action. Disability inquiries constitute nearly 70% of the service’s work, so it is acutely conscious of and sensitive to disability issues. The service has strong links to the EHRC, which sits on its management board. To address the concerns of the noble Baroness, Lady Deech, the two organisations have a memorandum of understanding and a good working relationship. I know that the EASS would very much welcome the noble Baroness—or, for that matter, any noble Lords who are interested—to visit its site near Rotherham to see the approach it takes to deal with its many callers.

The EHRC has a crucial monitoring and enforcement role for the Equality Act 2010. It has enforcement powers to compel compliance with the Act’s provisions, including the disability discrimination provisions and specific accessibility provisions, and to challenge organisations where required. If the EHRC suspects an employer or service provider of committing a breach of the discrimination provisions, it can conduct an investigation and take action to ensure that the employer avoids a continuation or repetition of that breach.

The EHRC has always been conscious of the need to prioritise disabled people’s interests, but its arrangements for doing this have changed over time, as noble Lords have pointed out. The 2006 Act provided for a disability committee. I stress that this was seen as a temporary arrangement, intended to reflect the need to integrate the particular requirements of the Disability Discrimination Act into the EHRC’s work. The then Government’s White Paper outlining the EHRC said:

“In line with the … Board’s general power to establish Committees to assist with specific functions, there will be a provision in the CEHR’s legislation for the establishment of a disability committee for a period … This will be especially important in its first years of operation”.


This committee had delegated powers within the EHRC relating to disability, but it did not have any additional powers: it could not do anything that the commission itself could not do.

The Act required an independent review of the activities of the committee after five years. This was partly to review how well disability issues had been embedded within the commission, and partly to reduce the Government’s role in dictating the commission’s governance structures, which would strengthen its independence as a national human rights institution. This independent review was duly carried out, and reported in 2013. It is still available on the EHRC’s website, and noble Lords may find it helpful to read it if they are not already familiar with it. The review recommended that the statutory committee come to an end on or after March 2017, and the then Secretary of State, who was under a duty to dissolve the committee,

“as soon as reasonably practicable”,

after receiving such a recommendation, duly did so, with effect from 31 March 2017. This gave the EHRC adequate time to make new arrangements.

The noble Baroness, Lady Gale, has already given a good account of this but by spring 2017, the EHRC was already looking to change its disability arrangements to those which better reflected its independence. It was setting up a Disability Advisory Committee to replace the statutory committee. The purpose of this committee was to bring in disability expertise to inform and advise the commission’s decision-making across all its work. The board maintains oversight of the committee through receipt of the minutes of its meetings and advance sight of committee meeting agendas. It may invite reports from the committee on particular issues and request the attendance of committee members to observe or participate in discussions at board meetings where appropriate. Similar arrangements are in place for the statutory Scotland and Wales committees, ensuring that the expertise of the DAC, as we call it, can be applied across the full range of the commission’s activities. Individual committee members may also be invited by the commission to play a specific role in, or advise on, areas of work where their personal skills, expertise or networks are of particular value to a project.

The noble Baroness, Lady Thomas of Winchester, asked whether disability could be treated in the same way as other protected characteristics. The noble Baroness, Lady Deech, spoke very much to the point when she noted that the Equality Act provides particular rights and protections for disabled people, including more favourable treatment in certain circumstances. It seems to me that the EHRC recognises this through its disability advisory committee, which is not replicated in its structure for other protected characteristics.

It was as part of that set of changes that the EHRC decided last year not to continue with the term “disability commissioner”. This was not a statutory post but simply an EHRC-created role: a set of responsibilities connected to the former disability committee that the commission decided to change as part of its overhaul of its disability arrangements, which indeed meshed in with a wider restructuring of the commission as a whole.

My noble friend has set out today, with strong feeling and in some detail, the problems and frustrations that he has experienced in seeking an appropriate role for himself as the EHRC’s disability commissioner. I am aware of his view that the real reason the disability commissioner role ended on 31 March last year, along with the statutory committee, was that the EHRC did not want him to occupy that role. I hope my noble friend and other noble Lords who have contributed to this debate will accept that I was not involved in any of the events that he has mentioned, so I am not in a position to debate the details of those events and I think he recognises that. I can certainly say that the Government have taken his concerns very seriously and he has had opportunities to discuss them with a range of Ministers and advisers across a number of departments, including Downing Street. I stress that the Government deeply regret that my noble friend was not able to resolve his differences with the EHRC about his role and responsibilities, and that as a result he is no longer an EHRC commissioner and cannot lend his wealth of personal passion and experience to the EHRC board.

In answer to the question of why we took away my noble friend’s disability commissioner role, I understand that he was appointed as a commissioner, not specifically as a disability commissioner. Any decision to give EHRC commissioners specific roles and responsibilities is a direct matter for the EHRC. My noble friend also makes the point that HMG should express regret about the conduct of a former Minister, and there was a precedent for keeping the disability commissioner. I believe my noble friend is referring to the coalition Government’s decision to abolish the statutory disability committee after three years rather than sooner. The relevant order related to the committee; it had no direct bearing on the disability commissioner, which was and remains an EHRC role, not in the gift of the Government.

[Lord Shinkwin]

My Lords—

[Baroness Williams of Trafford]

I cannot allow my noble friend to intervene because I am right on the wire.

My noble friend talked about freedom of information in this regard. The decision to abolish the role was not taken by Ministers, and the redacted material that my noble friend refers to does not evidence that the Minister took this decision.

I am completely running out of time so I shall address just one more point, made by the noble Lord, Lord Addington. I assure him that the new EHRC arrangements work better for disabled people than the old ones. That is a really important point. I refer him to the remarks made by the noble Baronesses, Lady Prosser and Lady Gale, which are very helpful. The EHRC itself has noted that while its previous approach provided some focus on disability issues, it was found to have the effect of treating work on disability separately from other work programmes. It also led to work on disability being seen as the responsibility of specific individuals in the commission rather than the collective responsibility of the board and the organisation as a whole. It is believed that that led to some miscommunication as well as missed opportunities.

I am now over time. I thank all noble Lords for their contributions, and I will catch up in writing on any points I have missed.