Nony Ardill
Senior Lawyer
Equality and Human Rights Commission
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National Human Rights Institution (A
status) approved by UN in accordance
with the Paris Principles.
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National Equality Body as mandated by
the European Union Equality Directives
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Equality Regulator for GB (under Equality
Act 2006)
Section 3, Equality Act 2006 - general duty to
encourage development of society where:
● Potential not limited by prejudice/discrimination
● Respect for individuals’ human rights
● Respect for dignity and worth
● Equal opportunity to participate in society
● Mutual respect between groups
Section 8 - duty to promote equality and
diversity, including through enforcement
Section 9 – duty to promote awareness of
human rights and encourage compliance
Section 28, Equality Act 2006
• Provision of legal assistance to an individual who
is (or may become) party to legal proceedings
• Proceedings must relate to provision of Equality
Act 2010
• Can cover breaches of the Human Rights Act but
only where there is also a alleged breach of
Equality Act 2010
• Priorities for assistance guided by the EHRC’s
litigation strategy.
Section 30 Equality Act 2006
 Breaches of Equality Act or Human Rights Act
 Power apply for judicial review in ‘own name’
 Bypasses victim status normally required by HRA
 Also power to apply to intervene
• neutral legal and policy expertise
• adding value
• help achieve progress in the development or
interpretation of the law
 NB increased costs risks for interveners (Section 87
Criminal Justice and Courts Act 2015)
Section 24 Equality Act 2006
‣ Power to apply for injunction where organisation
likely to commit unlawful act
● Example: against the BNP in 2009 re unlawful
membership criteria ('indigenous Caucasian' )
● This power would only be used for urgent cases
where no other means of resolving the issue
Powers under Equality Act 2006):
‣ Inquiries (s16)
‣ Investigations (s20)
‣ Unlawful Act Notices (s21)
‣ Action Plans (s22)
‣ Agreements (s23)
‣ Public Sector Duty Assessments (s31)
‣ Public Sector Duty Compliance Notices (s32)
Power under Equality Act 2010
‣ Pre-employment health questionnaires (s60)
NB These powers do not apply to breaches of the HRA.
 The Commission may conduct an Inquiry into any
issue relating to equality and diversity or human
rights
 The legal steps involved in the Inquiry process
include:
● publishing the terms of reference
● requiring organisations to provide information
● voluntary approach preferred
● publication of findings
● status of report (‘shall have regard to recommendations’)
 Examples: Disability-related harassment; Older
people and human rights in home care; Deaths in
detention of adults with mental health conditions
 Evidence of unlawful act under Equality Act 2010 (but
not HRA).
 Legal steps:
● Providing written details of why an act may be
unlawful
● Providing TORs
● Providing opportunity for comment on TORs and
taking into account.
● Deciding evidence collection powers.
● Representations before publication where an
unlawful act has been committed
‣ Example: current investigation into Met Police
treatment of female, BME and gay employees
 Failure to act on recommendations in an
investigation
 Commission may issue an unlawful act notice
 Notice may require the preparation of an action
plan and recommendations
 Commission can apply for a court order on failure
to comply with notice
 Failure to comply with court order is a criminal
offence
 Relevant where Commission believes an
organisation has committed an unlawful act.
 Action plan over 12 to 18 months
 Wide-ranging from Board involvement to
management training
 Preferable alternative to formal enforcement for
organisation
 No formal Investigation necessary
 Regular contact and reports on progress.
Recent example: Betfred betting shops (need for
diversity and equality awareness training)
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Power to undertake an assessment to evaluate
compliance with Public Sector Equality Duty (PSED)
Assessment purpose:
• obtain evidence for further enforcement action
• identify areas of best practice in performance of PSED
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Legal framework same as for investigations
If public authority assessed as not complying with
PSED:
• Power to serve compliance notice
• If failure to comply, power to apply for court order
‣ Failure to comply with court order is a
criminal offence
 Commission has sole power to enforce
 Enforceable as ‘unlawful act’
 No questions about health or disability before end
of recruitment process
 Exceptions:
● Identifying availability for assessment
● Making reasonable adjustments
● Identifying whether can undertake a function intrinsic to job
● Monitoring diversity
● Supporting positive action for disabled people.
● Identifying candidates where there is an occupational
requirement of disability
Three major legal functions:
‣ Intervene in human rights proceedings
‣ Take judicial review proceedings for breaches of
the Human Rights Act
‣ Hold inquiries
‣ In addition, monitoring and promoting UN treaties
 As a statutory body
●The Commission has no powers beyond those
granted by statute
●Those must exercised in pursuit of duty
●Must be reasonable, rational, fair, unbiased and
compliant with HRA
 Reasons must be clearly set out.
 No blanket policies for use of powers
 No fettering of discretion
 Regulators’ Code of Practice
 Subject to judicial review
 Revised version published March 2015
 Preceded by period of consultation
 Policy applied in accordance with:
● Regulators Code
● EHRC statutory remit and NHRI status
● Compliance and enforcement policy
● Current strategic plan/business plan priorities
 Strategic litigation policy is on our website:
● http://www.equalityhumanrights.com/legal-andpolicy/our-legal-work/strategiclitigation/strategic-litigation-policy
 Setting precedent/wider public interest?
 Continuing breach(es) of the law?
 Is litigation is best means of resolving issue…
 …. and is this case the best way of doing it?
 Effective use of EHRC resources?
 Emerging information from stakeholders?
 Strength of case under EA 2010
 Whether case would proceed without our help
 Form of assistance requested:
● Legal advice
● Legal assistance
● Facilities for settlement
● ‘Any other form of assistance’
 Whether more appropriate to use S30 powers
 NB first instance cases not usually funded, but
exception might be made for goods & services cases
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Can the EHRC act as neutral legal or policy
expert?
Would our submissions add value?
Would clarification of law lead to systemic
change?
Would any other party be intervening?
Possibility of joint intervention?
Would using S28 powers be more
appropriate?
NB S30 own name JR – power rarely used
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Request for assistance considered by
fortnightly Allocations Meeting (legal team)
Allocated to legal team member for scoping
Paper prepared for Regulatory Decision
Making Pathway meeting (fortnightly)
Urgent cases can be decided by RDMP chair
All RDMP decisions cleared by Chief Executive
There is a process for requesting a review
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For lawyers/those with professional interest
By email:
[email protected]
By phone: Lawyers' Referrals helpline
(England and Wales):
● 0161 829 8407
● Tues to Thurs, 10am to 1pm
NB: Members of the public: EASS helpline
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Website: www.equalityadvisoryservice.com/
Phone: 0808 800 0082/Textphone: 0808 800 0084
Nony Ardill, Senior Lawyer
Equality and Human Rights Commission
[email protected]
020 7833 7857