Equality and Human Rights Commission: Disability Commissioner

Debate between Lord Shinkwin and Baroness Williams of Trafford

Thursday 10th May 2018 Grand Committee

[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.