UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1042-iiHOUSE OF LORDSHouse of COMMONSMINUTES OF EVIDENCETAKEN BEFOREJOINT COMMITTEE ON HUMAN RIGHTS
WORK OF THE EQUALITY AND HUMAN RIGHTS COMMISSION
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This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.
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Any public use of, or reference to, the contents should make clear that neither witnesses nor Members have had the opportunity to correct the record. The transcript is not yet an approved formal record of these proceedings.
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Transcribed by the Official Shorthand Writers to the Houses of Parliament: W B Gurney & Sons LLP, Hope House, Telephone Number: 020 7233 1935 |
Oral Evidence
Taken before the Joint Committee on Human Rights
on
Members present:
Mr Andrew Dismore, in the Chair
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Dubs, L Lester of Herne Hill, L Morris of Handsworth, L Onslow, E |
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Mr Virendra Sharma Mr Edward Timpson |
Witnesses:
Mr Trevor Phillips OBE, Chair
of Commissioners; Ms Kay Carberry
Q59 Chairman: Good afternoon. This is a session of the Joint Select Committee on Human Rights looking at the work of the Equality and Human Rights Commission. We are joined by Trevor Phillips OBE, Chair of the Commission, John Wadham who is the Group Legal Director, Kay Carberry, who is one of the Commissioners, and Jeanie Drake who is also one of the Commissioners. Welcome to you all. I presume, Trevor, that you have seen the evidence that was given to us by four former Commissioners at the last evidence session we held, which did raise some matters of pretty grave concern to us. I think we would like to start with some of the things that came out of that session, and in particular the Commissioners told us that board meetings were extremely unsatisfactory; Commissioners could not influence the agenda; and the Commission was run like a one-man show. Do you recognise this description of the board?
Mr Phillips: Thank you for inviting us to speak to you, Chairman. Because I will not get the chance to do this this afternoon, may I just register formally our thanks to the committee for its visit to our offices, which we very much appreciated. The picture that you have just painted of our board is not one that I recognise. Let me start by saying that we are a Commission that has been in business now for two years. The board was a new one at the time it came into being. During the three years that we have been together I think that the board has developed its ways of working. I would be the last to say that it was perfect at the beginning or indeed at this point but I would make a general point, and my colleagues Jeannie Drake and Kay Carberry would be better placed to talk about this than I would, that I think that the board, by and large, is pretty open. I think that the issues that we deal with are extremely difficult. Many of them are divisive. They are ones about which there are real passions - discrimination, social justice, human rights, the balance between different levels of rights - and those are argued out around our table. In that situation of course there are arguments, there are passions, but, frankly, I think that is part of the role of the Commission. A tranquil Commission where everybody sat and agreed I do not think would be doing its job.
Q60 Chairman: Could you give some specific examples where individual board members have shaped the Commission's agenda or persuaded you to change your mind?
Mr Phillips: We tended to operate by consensus. I think that on almost all of the big issues the board eventually came to a single mind, which is why earlier on this year we were able to agree a three-year strategy, which I think you have seen or certainly that has been sent to the committee. We were able to agree a business plan, and that was agreed unanimously amongst all the Commissioners, including those who appeared before you previously, without any dissent. The only point in the last three years on which the board has divided formally on a vote was over an issue of policy, and my colleagues again may want to offer their views on it. I happened to think that was one of the best debates and the best moments for the board where we argued out a major issue. In the end, the only way we could decide where the board went was by voting on it. One side won. I happened not to be on other winning side but that seemed to me an extremely appropriate way to do things.
Ms Carberry: May I say, first of all, the former Commissioners who spoke to you a couple of weeks ago are some of the people I respect most in the world, and I have to take at face value their account of their experience on the Commission. I also have to say it was very far from my own experience. The impression that was somehow given of a cowed bunch of individuals who were unable to express a view and were unable to challenge the Chair, either because they were intimidated or because they were part of some mysterious inner circle that I have never come across, is partly demeaning to a group of independent and strong minded people. I also offer another explanation, and that is that we felt that we were indeed able to make our points when we needed to make our points, and there was not perhaps widespread dissatisfaction with the style of chairing. That may be an explanation of why there was not more overt challenging of the Chair. Some of us felt that it was not on most occasions necessary because we had confidence in the way that the Commission's business was being conducted.
Ms Drake: Like Kay, I want to pay respect to my fellow Commissioners because obviously they have outstanding credentials as campaigners on equality and human rights issues, and certainly influenced me in debates that took place but, like Kay, I probably saw things in a slightly different light. I certainly never felt personally intimidated. I never felt I could not articulate what I wanted to articulate. I went into the new Commission I think expecting big challenges and complexities, that here we had a young organisation that is evolving and it would take time to get to a mature steady state and achieving everything that we desire to achieve. We were merging three existing commissions that had differing degrees of support for the concept of a unitary EHRC; we were bringing three different cultures together; and we had new strands where we had not perhaps built up the expertise in those strands with people wanting to engage in those. We had to get through a speed of transition; we had to build up capacity and capability against a background of stakeholders demanding visible action from the Commission. We had to determine our identity as a regulator. We had a very exciting remit, but it was equally going to be a very contentious remit. So, it was inevitable there would be robust debate and there would be robust debates amongst people with very strong opinions. I think when you look at those challenges that the Commission had to deal with over a very short period of time, then we were going to be robust; we were going to be focused on problems; and we had to get ourselves, and I think the Commission is getting itself, to a stronger and stronger position, but this is a young organisation that is evolving. I genuinely did not feel that I could not raise issues, and I did raise issues and I did not always win my point and sometimes I did win my point.
Q61 Chairman: Could I raise some of the governance issues which I would normally expect to go to a board in these circumstances? Did the board discuss the reasons why Dr Brewer decided to resign as Chief Executive and the arrangements for her replacement?
Mr Phillips: The answer to the first part is no because the reasons were rather
clear. Dr Brewer is a career
diplomat. She had been in the Foreign Office
before she came to us. I was
thrilled actually when she took the post, but I think there was never really
any doubt that she would, like any chief executive, want to move on to
somewhere else. When she was offered the
post in
Q62 Chairman: So the only reason she decided to resign was because she was offered the appointment as High Commissioner in South Africa?
Mr Phillips: That is the reason that I know and that is the reason that she gave the board.
Q63 Chairman: This was never referred to the board? There was no discussion about any other aspects relating to the relationship with her?
Mr Phillips: That is a different point. We discussed, as you will know, over a period right from the first year of the board's operation, how the board operated. One aspect of that was the relationship between the board and senior management, a part of which of course is always the relationship between the Chair and the Chief Executive. Again as you will know from the papers which you have received, we commissioned the independent exercise done by Deloittes. There are a number of points raised, a number of recommendations, which we have since adopted in relation to that. That was not in relation to the Chief Executive's departure. We started that conversation long before that was even on the horizon.
Q64 Chairman: I do find it surprising that Dr Brewer only resigned because of an appointment in South Africa because I assume when she took the job on she would take it on for the normal period of anybody holding a position like that, which would be similar to a posting in the Foreign Office, which would be for three or four years. It does seem rather peculiar that she would decide to resign so soon into her career with the EHRC.
Mr Phillips: I am afraid I cannot speak for Dr Brewer on this. All I can say is that when she told me of the offer that she had been made, she told it to me with some regret, but actually with a great deal of pleasure, which I shared. My view is that if somebody gets an opportunity that is as great for them as this one was to her, I do not think that one should be grouchy about it. She wanted to do this job.
Q65 Chairman: Did the board discuss the redeployment of former CRE staff who had taken redundancy pay? I know that is the subject of a PAC inquiry.
Mr Phillips: When it was drawn to our attention eventually by the Chief Executive and the Audit and Risk Committee, which is the appropriate way for something like this to be brought to the attention of the board, yes, we did discuss it.
Q66 Chairman: How soon after the appointment?
Mr Phillips: I think this actually came to our attention at the beginning of 2008.
Q67 Chairman: The discussion was in the board in 2008?
Mr Phillips: You will have to forgive me. So that you have the proper information, I will just need to check when and where we dealt with this specific point of what date it came before the board. I beg your pardon, it was early 2009. I was made aware of this by the Chief Executive because she had been in correspondence with our sponsor unit on this matter and in relation to the Treasury. It was raised at our Audit and Risk Committee, which is the committee of the board that is responsible for drawing the board's attention to these kinds of issues. I do not sit on it for obvious reasons but this came up in early 2009. It came to the board a little later than that this year.
Q68 Chairman: When were the staff members from the CRE appointed?
Mr Phillips: The situation you are describing is the re-contracting of a number of individuals who had previously worked for the CRE at the start of the Commission's life, which was October 2007.
Q69 Chairman: So it as two years later?
Mr Phillips: About 15 or 16 months when it came to the board.
Q70 Chairman: Was it rather surprising that it took so long?
Mr Phillips: With hindsight, yes, but of course the problem is you cannot know what you do not know. I think the board in retrospect would say that we did not have the procedures or perhaps the Audit and Risk Committee was not as alert to this as it might have been but certainly you are right in your implication that we should have seen it faster; we have learnt from the lesson and are trying to tighten up the way that we operate so that these kinds of things come through Audit and Risk to the Board more quickly.
Q71 Chairman: Presumably you knew they had received redundancy payments from the CRE before they were appointed?
Mr Phillips: I did not.
Q72 Chairman: You did not?
Mr Phillips: No. This is not a matter that I would have dealt with as Chair. What I did know was that at the beginning of our time, in October 2007, the Commission had only ten of its complement of 25 directors and the Chief Executive said to me, "We have to get people in if we are going to get started on 1 October". There is a discussion to be had about whether we should have asked for more time, as others in similar situations have done, and I am frankly very happy to hold up my hands because that was more my responsibility than anybody else's, to say that perhaps we should have thought about that again. What the Chief Executive said to me was that she needed to make sure that we had the right number of people with the right level of skills to get us open, and this was one of the ways that she wanted to approach it.
Q73 Lord Lester of Herne Hill: Is the position that you brought three people from the CRE into the transition team. It was not advertised or anything like that. You brought them in and Dr Brewer as your Chief Executive insisted that they should end their temporary engagement before the start. Is it also not true that there were rather difficult courses of dealing between you and the Chief Executive on that matters and matters like conflicts of interest throughout the time that she and you were working together?
Mr Phillips: On the factual matter, the answer is no. I have never actually employed anybody at the Commission because that is not my role, other than the Chief Executive. All staff are employed by the Chief Executive and management.
Q74 Lord Lester of Herne Hill: But you brought them in before she was there, did you not?
Mr Phillips: No. In the transition period, the Programme Director was responsible for those hirings.
Q75 Lord Lester of Herne Hill: But you brought them from the CRE before she came and she then insisted that they should leave and she also raised other matters where she was in conflict with you about, for example, conflicts of interest. That is true, is it not?
Mr Phillips: You are asking two separate questions. I want to get to the second one but, just to deal with the first, I as Chair of the organisation in the normal way as Chair do not employ people, have never employed people; I have never been on a recruitment panel; I have never undertaken recruitment for the Commission other than that of the Chief Executive. It is not my role. I do not have the competence or the authority to do it.
Q76 Chairman: I think we are straying in to PAC territory now.
Mr Phillips: May I just answer Lord Lester's other point? On the issues of conflicts of interest, which I am sure we will return to, I had one particular issue about work that I did outside the Commission. I took advice from a number of sources, in particular the Commission's own lawyers, and the Chief Executive I think certainly offered me some personal advice but was also part of the conversation with the Commission's lawyers, and I took action on that on the advice of a number of people.
Q77 Dr Harris: Ms Carberry, you described earlier that you thought that what some of the former Commissioners have said or the fact that they have said it was demeaning to them. How else do people who have concerns say what they are, without saying what they are? Should they, if they do that, run the risk of having an adjective like that being directed at them by someone who simply disagrees with them? Why not just take issue with what they say?
Ms Carberry: I am very glad that you ask that because perhaps I was not clear. I was saying that their implication that the rest of us were too cowed and intimidated to challenge the Chair was demeaning to the rest of us. I was not casting aspersions on them.
Q78 Dr Harris: You can speak for your self, can you not? You were not cowed?
Ms Carberry: I was very careful to say how much I respect them and how much I take what they said at face value but, after all, if you are the Deputy Chair, there are ten Commissioners who did not chose to resign. Of course they can speak for themselves but, speaking for myself, I felt that if I needed to make my arguments and if my arguments were in conflict with the position of the Chair, I was perfectly able to do that. The example that Trevor gave of the one occasion when an argument was pushed so far that there needed to be a vote was actually initiated by me where I did not agree with something.
Q79 Dr Harris: I do not have a problem with that.
Ms Carberry: I am not denigrating the Commissioners who resigned.
Q80 Dr Harris: Let me be more specific in my question. You said you were not cowed. Are you speaking for yourself or for the other ten or a number of the other ten? In other words, might there be a third group, those who did not give evidence and yourself and Ms Drake who said that you certainly did not feel cowed? Might there be other people for whom you cannot speak?
Ms Carberry: Yes, on the Commission there might well be. I can only speak for myself.
Q81 Dr Harris: So she may not have been talking about you and any of the Commissioners who said some Commissioners felt cowed? Can I just clarify, because you have supported the Chairman here, which is fine, it is your right to do: are there any conflicts of interest that you have in respect of your support for the Chairman, you or Ms Drake, that you might wish to mention now in respect of that? Can you think of any? I give you the chance.
Ms Carberry: No, I cannot think of any. I am not sure what you might be suggesting but I cannot think of any.
Ms Drake: I do not believe I have any conflicts of interest but as regard the question, strictly speaking, I am not currently a Commissioner because I was an EOC transition Commissioner and my period of office ceased at the end of September. That would have happened anyway. That was a period of appointment for three months. I have expressed an interest in continuing to do work with the Commission. You asked me the straight question, so I have given you the straight answer.
Q82 Dr Harris: Who will decide whether you do continue to have that paid post?
Ms Drake: I presume that is the GEO and the Secretary of State.
Q83 Dr Harris: I thought there was a selection panel of which the Chair was a member? Am I wrong about that?
Ms Drake: But the decision rests with the Secretary of State.
Q84 Dr Harris: I just want to clarify whether for either of you in your continuing appointment as Commissioners in any way in your opinion - the Chairman can answer for himself in a minute - the Chairman has any say in that?
Ms Drake: No. I am absolutely fully aware of standards in public life and my responsibility. I hold other public appointments, and the issue of probity in my conduct and my integrity is very important to me, so I will answer the questions with absolute honesty. You asked me a very direct question and I have given you a very direct answer. I can give you absolute assurance that that does not influence in any way how I would respond to this committee or in any way in which I would discharge myself in any public role.
Q85 Dr Harris: No, I was not suggesting that anything would, but for the sake of appearances it is important to have that on the record.
Ms Drake: Absolutely and I have given the answer.
Q86 Dr Harris: I want to give Ms Carberry a chance to respond.
Ms Carberry: Just as a matter of record, my term of office is coming to an end. Together with other Commissioners, I have the option or not to reapply for a further term, and I have reapplied for a further term. The Chairman was one of the members of the panel that interviewed me. He was one I think of four or five people on the panel, just for the record.
Q87 Dr Harris: But you have not yet heard the outcome of that?
Ms Carberry: No.
Mr Phillips: May I just read into the record the fact here? The appointment of board members is a matter for the Secretary of State under the Equality Act 2006. The process is led by the GEO, and that means in fact that the panel is chaired by the Director General, GEO, and they have appointed the Public Appointments Commission to manage the process. There was an advertisement in The Sunday Times. The panel interviews have recently concluded. I am one of a number of people on the appointments panel. The others include Jonathan Rees, who is Director General of GEO, who is the Chair; Sue Owen who is the Director General of Welfare and Wellbeing at DWP, and Sheila Hewitt who is the independent assessor from OCPA, and the recommendations from the appointments panel will be put to the Ministers. The decision here will be entirely that of Ministers. I have been through this process twice before as Chair of this board, and indeed previously as Chair of the CRE. For what it is worth, I can tell you that Minsters will listen to the Chair of the relevant commission, but I know that they listen to other voices and, in the end, my experience is always that this is a ministerial decision.
Q88 Dr Harris: So you have an influence but it is in no way decisive?
Mr Phillips: I think it is appropriate to the Chair of this body.
Q89 Dr Harris: I am not arguing appropriateness. Mr Phillips, you mentioned that you thought there was generally a consensus on the Commission but we heard in our evidence previously that Professors Klug and Hampton spoke of a culture of intimidation, Been Summerskill talked about the clique that the Chair surrounded himself with, Sir Bert Massie among other things referred to items that were agreed for the agenda which would be withdrawn and how he had to travel back and forth from Liverpool raising governance issues which were never addressed. In her submission now, Baroness Campbell seems to reinforce this picture. She says: "Later on towards the end of my time at the HRC, I can honestly say quite a number of Commissioners felt intimidated by the divisive culture that was allowed to fester." "I realised how problematic many Commissioners found it to challenge the Chair on his personal conduct, even when it was our duty to do so." "The Chair surrounded himself with a few like-minded people who shared his view style and this became difficult to intercept." Then finally, "I would liken his style to that of a newsroom with cliques and an 'in crowd'. Unfortunately, this meant that those with an alternative view were isolated or treated with indifference. The culture was very exclusive and opposite to the kind of culture an equality and human rights body should be role modelling." Can all those people, for whom it is said there is great respect, be in some way delusional about that? Do you recognise that that was their experience and why is it that those people, who are very senior in their professions, would appear to be so easily intimidated, or is there in fact a real problem here that you need to recognise?
Mr Phillips: First let me join my colleagues in saying that I recognise that the individuals to whom you refer are distinguished in their field but they were also distinguished members of our board, which I think one of your witnesses previously described as a remarkable board, an assessment with which I agree. I think that all of these people are experienced people who, frankly, were not in my recollection that shy in putting forward their views. I think one of the early criticisms that some of my colleagues made was that our meetings went on slightly too long because it is my habit to allow anybody who wants to come in to discuss things to come into the discussion.
Q90 Dr Harris: I do not want to talk about the length of meetings. I want you to come to the point I put.
Mr Phillips: I think that words like delusional and so on seem to me extremist, certainly not in any way applicable to anybody involved in this discussion. I can certainly accept that some Commissioners may have felt differently to others but it is worth saying that, as you say, there are a number of Commissioners, in this case four, who have come before you and made their feelings known, but there is another dozen who, as far as I am aware, did not express themselves in the same terms and did not feel that in the same way. May I finish my answer?
Dr Harris: Baroness Campbell has associated herself with the evidence given by the other four, so there are five.
Q91 Chairman: Let Trevor finish his answer and then you can ask your question again.
Mr Phillips: The only point I was going to make is that all of us have sat together for the best part of three years. We have worked together. We have delivered what I think is extremely good work, getting the Commission up and running in a very short time, extremely important strategic cases, compliance actions, establishing ourselves as a national human rights institution, delivering human rights inquiries, talking about strategy, and I could go on. It seems to me that everybody, including those who appeared before you a couple of weeks back, made an extremely important contribution to all of that. The picture of a board which was divided and where people could not speak, and so on, really is not one that I personally recognise. That is not to say I do not believe that anybody could interpret it in another way; it simply is not a picture I recognise.
Q92 Dr Harris: Is that not part of the problem that they are making? Baroness Campbell, and I am sorry I tried to interrupt you before, says: "I agree with the oral evidence given to the Committee by my fellow former Commissioners on 23rd October 2009." She said that she had worked with you for nearly three years, is convinced you are a man of many talents, able to engage with some people in a way that few other people can, namely politicians and the media in particular. She says, "However, I finally came to the conclusion that these skills came at too high a price for the EHRC which was being held back by a disempowered Board and a lack of cohesive direction. Eventually I came to believe that Trevor Phillips's conduct and approach towards governance were severely damaging to the EHRC." If you do not recognise that, do you not think you should have done, given that you have five Commissioners who feel very strongly, strongly enough to break ranks, if you like, and say what they have said? They did make it clear it was painful to them to say it.
Mr Phillips: I honestly cannot comment on what four former colleagues and one still a colleague, Commissioner Summerskill who is still a Commissioner, say in these terms. What I will say is that I really regret it if people felt that way. I wish that either in our closed sessions or in the board, if this was the way that people felt, they had expressed it. It seems to me that most members of the board never had any trouble in disagreeing with each other or indeed with me. If you look at our minutes, if you talk to most of my colleagues, I think you will see that there is a mixture of feelings about the way that we operate and we learnt. That is one reason, by the way, why we commissioned, after a year, the Deloittes study because we wanted an independent judgment about how we were operating. That did come forward with some assessments of both our strengths but also our weaknesses, which we have worked very hard to try and put right.
Q93 Dr Harris: Other colleagues will come on to talk about Deloittes. The situation we are in is that although you may say that the remainder have not said anything, if you are in the position that you are in, on the salary you are on, with the responsibility you have and the nature of the beast which is about equality and human rights, to have five "dissident" Commissioners making such strong criticisms, which I know must be painful if you did not see them coming about the way you chaired it, does that not make your position untenable for the benefit of the concept and the Commission itself? Did you give it pause for thought?
Mr Phillips: All my colleagues' comments give me pause for thought regularly. Actually, I think we are pretty honest with each other. Let me first say that of course this is painful. Of course none of this is pleasant, more importantly, not because it reflects on me personally but because it distracts from the very important and much of it successful work that the Commission is doing. That what I think is actually the thing that I most regret here. If I could find a way of that not happening, if I could have acted differently or can now act differently to ensure that does not happen, you can be sure that will be at the top of my personal agenda. May I just make one other point? It would be easier to respond to your question if you could give a particular example of a particular thing that I might have done differently or the board might have done differently to answer these general assertions. I am not using the term "general assertions" to suggest that they are not true. I am simply saying that unless they are concrete, it is rather had to respond to them.
Q94 Earl of Onslow: Mr Phillips, I find it very odd that Ms Carberry said that she did not see widespread disagreement. How many members of a board have to resign before you recognise widespread disagreement? Five members of a board plus the chief executive going does not give me the impression of harmonious, happy, harp playing, sanctimonious happiness in this world at all. It just reminds me of a sack full of alley cats not getting on. Which is it?
Ms Carberry: It has not been paradise but, as I said, there are ten Commissioners aside from the Chair who are still around the table, who have not resigned. I think, Chairman, you have had the benefit of the documentation linked to the Deloitte's governance. There was one interesting reported comment from one of the board's meetings in the context of that study, which was that it is interesting that you can have completely different narratives of the same shared experience.
Q95 Earl of Onslow: With respect, your answer is waffle. How many members of a board have to resign? Is it 15 resign and one remains? Does that show there is widespread dissatisfaction? Is it 12, six or five or none? I cannot recognise a body which says five plus its chief executive have resigned and then you say that there is no widespread disagreement. That simply bears no relationship to perceived reality at all.
Ms Carberry: I am giving you an account of my own subjective perceived reality as somebody who has attended a great many meetings and taken part in a great many Commission activities over the three years and that is all I can do. All I have claimed to do as I have sat here is speak for myself. On Dr Harris's question about the Chair's position and whether it was still tenable, I would think that the Chair's position was untenable if the Commission had not achieved anything over the last three years. I think that the record speaks for itself that there is a range of work, and I will not take up your time by going into the great list of achievements that are obvious and are in the public domain already. Had we been a dysfunctional organisation, an organisation in disarray, an organisation where widespread dissatisfaction was infecting the work of the Commission, that would be a very serious matter, but I would contend that the record of the Commission's work suggests that that was not the case.
Q96 Earl of Onslow: Further to that, I see it says: "Do all Commissioners rigorously hold the Chair to account for what he says and does?" We were given in the evidence that we heard that the Chairman did things without reference to the Board. When I asked the people concerned were these things not discussed at board meetings, why did you not put them on the agenda, they said that on occasions they had asked for them to go on the agenda and they had not gone on the agenda. In my experience of chairing anything, which I very occasionally do, I try to ask anybody who wants things on the agenda that it should be put on the agenda, and it always does go on the agenda because that is what boards are for; it is to discuss things and not for the Chairman to go off and do things without board approval. In the evidence there were lots of those incidents and that is not a satisfactory way of running a board. Would you agree or not?
Mr Phillips: I utterly and completely agree with you, Lord Onslow. I would be interested to know what the actual item was that was asked for and not placed on the board agenda.
Q97 Earl of Onslow: I accept that I only received my papers about ten minutes before I came, so I have not re-read them in great detail, but I do remember with distinct clarity raising this point with the four people who gave us evidence and they said that was the case. You are saying it is not the case. Am I right in saying that?
Mr Phillips: I remember reading that piece of evidence and I think you quite rightly asked exactly the same question that I have just asked: was there a particular issue that any of the people concerned wanted discussed. I do not recall, in receiving the evidence, anybody saying there was a particular thing they wanted to debate - support for a particular case, the way we ran a particular issue, a financial matter. I do not recall anybody identifying such a matter. I completely agree with you that part of the value of a board is that matters that board members want raised should be raised. I think that from time to time the volume of business can be such that a topic that somebody would like on this month, including me, does not get there and we might discuss it the following month, unless it is so urgent, in which case what I tend to do is to say to the board as a whole, "How would you like to deal with this?" and, generally speaking, we reach an agreement about how we do it.
Q98 Chairman: One of the issues that came up in the previous evidence and indeed in Baroness Campbell's evidence to us is the concern that major policy statements and speeches have been made by you without prior discussion in the board; for example, the speech you made on the anniversary of the Rivers of Blood speech when you talked about the emergence of a kind of cold war in parts of the country, which some people took exception to, and the announcement that institutional racism was not longer a problem, which somebody else took exception to. Were these policy statements discussed in the board beforehand?
Mr Phillips: May I first say that in your question you are referring to two quite separate speeches?
Q99 Chairman: I am, yes.
Mr Phillips: On the first one, I think that Professor Klug pointed out to you that this idea of a cold war was not an expression used by me, and I believe she said in her evidence that it is not an implication that could be taken from my speech.
Q100 Chairman: We have the quotes.
Mr Phillips: What did I say?
Q101 Chairman: "We have seen the emergence of a kind of cold war in some parts of the country, where very separate communities exist side by side... with poor communication across racial or religious lines."
Mr Phillips: The way it was reported I think is what Professor Klug was referring to, that I did not suggest that this was something that had divided the country. I was talking about particular areas. The other point you make about the speech I made on the tenth anniversary of the Macpherson Report, which was January this year, actually is an interesting example because we went to some lengths on that particular occasion to make sure that what I said was, first of all, evidenced and, secondly, discussed amongst the board. In relation to the first point, we published a research report in the middle of January, which would have been done independently, commissioned by the EHRC, which looked at the performance of police forces in the ten years since Macpherson, and we published that separately from the speech, but the speech was based on that. In relation to what I then said, we discussed the idea I think in the autumn of last year.
Q102 Chairman: Which one is that?
Mr Phillips: This is the Macpherson speech, tenth anniversary. In December, we set aside a period, I think about an hour or an hour and a quarter, for the board to discuss that speech, which we then did. A draft, or at least a paper which was based on that discussion, a series of internal staff discussions, plus some external discussions with Members of Parliament, took place in December and January. We circulated that paper to board members. Some of them responded. In fact, I remember Professor Klug herself was one of the people who did respond, and indeed she was the only board member, when we circulated the draft of the speech as it was finally delivered and the press release, who did respond with some comments, which we then incorporated. That speech was pretty thoroughly discussed before I delivered it.
Q103 Chairman: So Baroness Campbell is wrong when she says she was concerned that this policy was made on the hoof, with little or no reference to Commissioners?
Mr Phillips: I do not think in my view that that is a description of the way that we have operated.
Q104 Chairman: And the first speech, the Enoch Powell 40th anniversary of the "Rivers of Blood" speech?
Mr Phillips: You are quite right - it is a year and a half ago - I think I did use the words "cold war" but certainly not in the way it was reported.
Q105 Chairman: The question is not what you said; that is a separate debate altogether. The issue is whether there was consultation with the board before making such a speech?
Mr Phillips: On other Powell speech, yes, we discussed that; we discussed the idea of doing it at all because I myself had some doubts. The board discussed it, senior staff discussed it; and I think a view was taken that this was an important moment for the Commission to make a statement.
Chairman: So when Professor Klug says, "I have to say we had not discussed that. If we had, I personally would have objected to that", she is wrong?
Q106 Dr Harris: She is referring to the quote, "However, we have seen the emergency of a kind of cold war in some parts of the country where very separate communities exist side by side" et cetera, which the Chairman read out.
Mr Phillips: She may be referring to specific words and that may be true, that we did not talk about those specific words.
Q107 Earl of Onslow: Coming back to my question, I have found the bit in the evidence. It is on page 18 of the evidence. "My answer to that would be that I do not think we expressed it in those terms. I do not know what my colleagues would say. I do think at the beginning, when some of us still had the fight in us, we did quite often ask to discuss fundamentally what we are there to do, how do we do it, how do we get policy on difficult issues. We had a private meeting once. We were going to do it and we never did." In other words, there is somebody asking for a strategic policy board meeting discussion and it appears that it never took place.
Mr Phillips: My colleagues can speak for themselves on this.
Q108 Earl of Onslow: No, Chairman. You must answer the question.
Mr Phillips: I am going to respond to you. The principal strategic duty of the board is to produce a strategic plan, which we did earlier on this year. We discussed that strategic plan in drafts in December, January, we set aside a day to discuss it in February, and we agreed the final plan in March. So there were four separate occasions on which we discussed the single most important strategic document that the Commission produced.
Q109 Earl of Onslow: You discussed the document but did you discuss what your plan was before you got a document or did you say "Can we have a document to tell us what to do?"
Mr Phillips: No, no, we discussed what the priorities of the Commissioners were, first of all in a rather open way; we asked the executive to come back with some proposals, which they did in January. We decided we needed a longer time to discuss that, so we set aside a specific time, I think it was the best part of a day in February, in which all board members participated. Then we discussed the final document in March because we had to present it to the Secretary of State by the end of the financial year.
Q110 Lord Lester of Herne Hill: I ought to declare a professional interest first. I should have done that before. I had the privilege of advising and acting for the EOC, the CRE and the present Commission. I want to turn to the Deloitte report, if I may, because one of the points made by the five resigning Commissioners is that the criticisms that Deloittes made were sanitised - a short way of putting it. We asked you to provide some material, which you kindly have. My understanding is that there were two meetings; one on 29 October 2008 and one on 24 November 2008. You provided some of the background material to us, which I have looked at. What background material was provided for the board meeting, the first of those two, on 29 October, because we have not seen that?
Mr Phillips: I am afraid I cannot bring that to mind immediately. What we supplied to you I think is all the documentation we had.
Q111 Lord Lester of Herne Hill: Can I help you with your memory?
Mr Phillips: Yes, of course.
Q112 Lord Lester of Herne Hill: Was that material that was quite critical of the board that was part of the material discussed on 29 October that we have not seen?
Mr Phillips: I do not have that material with me.
Q113 Lord Lester of Herne Hill: Do you remember not the material but the criticism? Was there material that came to that first meeting from Deloittes, to use your own language, that talks about weaknesses? You said that there was an independent assessment that referred to weaknesses.
Mr Phillips: On 29 October?
Q114 Lord Lester of Herne Hill: Yes. Was there material at that first meeting on 29 October which drew attention to weaknesses? We have not seen it. I am just asking the question.
Mr Phillips: Yes. Deloittes first did a series of interviews with board members and stakeholders and they set out what they thought were some of the comments about the weaknesses, strengths, opportunities and so on of the board. I think you have some of those.
Q115 Lord Lester of Herne Hill: We have. I am not asking you about what we have. I am asking you about what we do not have, if you follow.
Mr Phillips: That is what was supplied to that meeting.
Q116 Lord Lester of Herne Hill: I understand you will not remember now but can you please check and if I am right, can you supply the written background material that was provided to the first of those two meetings.
Mr Phillips: On 29 October?
Q117 Lord Lester of Herne Hill: On 29 October?
Mr Phillips: It is what you have. What is called the "As is analysis: Perceptions from EHRC". That is the material.
Mr Wadham: If I can help, there may be other material that we have not supplied but we have tried to find all of the material that was available and provide it to the committee. I cannot guarantee that, looking backwards, there was not something missing but, as far as we can tell, the position is that you have everything. Obviously we can look again to see whether there is any other information but we went back in our own archives, and obviously to Deloittes as well.
Q118 Lord Lester of Herne Hill: That is fine. If you would look again, I would be grateful. The real question is this: were the criticisms about weaknesses in the Commission discussed by the board and, if so, when?
Mr Phillips: They were. They were discussed on that occasion. They were discussed subsequently. It is worth saying that you will see from the material supplied for 29 October that Deloittes I think at that point had not finished their interviews, so it was partial, but I would not make a big point of that. I think we are saying they had heard. We had asked them for a warts and all presentation to us, so all of those issues were discussed by the board. The only caveat I would put is that as I recall it some board members said that they felt that the views that were attributed to them were not quite what they thought they had said, so I think one has to treat this with a little bit of care. That is all.
Q119 Lord Lester of Herne Hill: What would you say then about the points made by the five resigning Commissioners effectively that the warts were removed from the picture by the time that the Deloittes final report was produced?
Mr Phillips: I would say that is not my interpretation of what happened. The final report that came to the board, which set out what Deloittes thought we had to do to become in essence a better board, I thought set out pretty clearly some of the issues that we were trying to get right. It gave us some very clear recommendations about better preparation for boards, relations between boards and SMT and so on. It is worth perhaps putting on record that the final report that was presented to the board was adopted by the board unanimously and the board asked the Deputy Chair, Baronesses Prosser, to take charge of the process of implementing the recommendations of the Deloitte's review. As I said right at the outset, this is not a board in which everybody went into the room and everybody agreed about everything. I personally would think that would be the wrong way to carry on. We did debate things; there were different views. We then tried to work those through and, generally speaking, as on this case, we reached a consensus. I want to be absolutely clear that I am not trying to present the EHRC board as though we all came into the room, we all agreed about everything, it was all swimming, there were no robust debates. Let me assure you that there were and there were disagreements.
Lord Lester of Herne Hill: Can you think of any reason why the five resigning Commissioners should have had the impression that the Deloitte's report was sanitised in the course of your deliberations? Can you think of any reason?
Q120 Chairman: Can I put the question more specifically, Trevor? Basically the point that they were making I think is this, that recommendations were aimed at improving the performance of the Chair, i.e. you, but downgraded in the final version of the report. Looking at the report, we see in Appendix G recommendations about chairing of board meetings, and this is put into the second phase of the work programme with no timetable to implement them. It is a confidential document at the moment, so I will not go through the detail, but there does seem to be something of a downgrading of recommendations in relation to your role compared to the original discussion
Mr Phillips: I do not think that is true actually. I think the principal issues were not about the management of the board meeting. The principal recommendations were about the roles and responsibilities, and clarifying those, about the size of the board, and some issues of process. There were many recommendations which Deloittes themselves said were out of scope, which they did not think were of the first order, and the board itself discussed this. I must, in a way, reiterate this point. This is not a report which I wrote or the Chief Executive wrote; it was a report which was written independently and was discussed by the board and the recommendations were agreed by the board.
Q121 Chairman: I think we ought to put this one paragraph out of the document. This is a recommendation from the document about chairing the board: "Ensure Chair leads by example and encourages everyone to actively participate, listen attentively, pose questions to achieve clarification and shared meaning, strive for consensus on decision-making, encourage creative and challenging discussions and respond with respect and courtesy." The inference is that was a problem that already existed that needed addressing, which chimes with the complaints of the previous Commissioners who we heard from a couple of weeks ago. If there was not a problem why did you have that recommendation?
Mr Phillips: It was a view that was taken by Deloitte's. Let me be absolutely clear: I took that very seriously. If that was a perception, whether or not I thought it was true, and unless you want to get into the detail of it here it does not matter whether I thought it was true, it was something that I had to respond to, which I have tried to since then. My colleagues may have a view about that. If I may say, the point is Deloitte's made that a point of further recommendation for further implementation and the board agreed. That was the status of it.
Q122 Chairman: Is there any reason why this document cannot now be made public?
Mr Phillips: I think this is a document that was for internal consumption by the board. I would not want to make it public without the permission of the board itself.
Q123 Chairman: Perhaps you might put that to the board because I think this is quite an important document, having read it myself, in terms of the issues that arose. This is where the evidence has taken us. When we started our discussions with the previous Commissioners we did not expect to end up where we are now with the questions we are putting to you at the moment. This is quite an important document to inform that particular discussion and debate.
Mr Phillips: If I may say so, Chairman, if that is true then it is worth making reference to the whole of the document because, as you will also know, in the same section there were references to the board, individual board members' behaviour and responsibilities, the chief executive and the senior management team. You have picked out some references to the Chair's contribution, but if we are putting this on the record it is perhaps worth saying this is a lengthy report, most of which does not refer to the Chair.
Q124 Chairman: That is why I think it would be very helpful if the document could be put in the public domain.
Ms Drake: I am just getting a bit concerned. We did meet as a board to discuss the results of the Deloitte review and like any board - I have done these in other organisations - that does a review of itself and its operation, there was robust debate. People were expressing what they felt strongly about, what they thought they could improve. I am not denying that sort of robust debate took place. I would have expressed my own strong views. That is not unusual, that happens in boards, and I am quite happy to confirm to questions that we had that robust debate and people were articulating what they were unhappy about. Then you go from there to say, "How does that inform how we should improve? What are the actions we take? How do we as a board ensure, with the executive, that we sustain momentum to delivering those improvements and changes?" You are absolutely right, that process did happen, we were all robust in articulating our views, we were trying to capture how that meant we should improve. My point is not to deny that there was robust debate or people had differing opinions, but that we were in an evolutionary process and what I felt was not being recognised was some of the very positive things that the EHRC was achieving, even though I absolutely recognise that there was plenty of scope for improvement as there is in any new organisation. If you look at the recommendations that come out of here, there were recommendations for everybody. There were recommendations for how the board conducted itself and that the Chair should be assessed for his performance more systematically. We were addressing these issues and it was down to us to make sure we sustained the momentum for delivering those improvements.
Chairman: There was apparently a meeting on 17 November, a special working session with Commissioners, senior management and staff to explore the Deloitte issue and it would be very helpful to have the minutes of that meeting and any other record of that meeting to inform our further consideration of the issues.
Earl of Onslow: Just looking at the first paragraph, in here it says - I will paraphrase ---
Chairman: No you will not, Lord Onslow.
Q125 Lord Morris of Handsworth: I wonder whether I could shift the emphasis of conversation to the question of leadership, about which we heard a lot of evidence from the four former Commissioners. They repeatedly expressed concerns that their skills and expertise had not been fully utilised. You may or may not agree and might think it is perception or reality. Their perception might well represent their reality. The key question is, looking back do you regret that you failed to bring the best out of your team?
Mr Phillips: The way I would respond to that, Lord Morris, is to say that I do think the Commissioners' capabilities could have been better utilised. There are reasons why we did not get there as quickly as we might have done. First of all, to be absolutely honest, it was speed, just trying to get things done. Bearing in mind the Commissioners are part-time, 20 days a year, there are limits to how much we and the senior staff could ask them to do when you bear in mind that we have six or eight Commission meetings a year, plus if you are on the legal committee, for example, that is another seven or eight half days, and we are using up the time of Commissioners very, very quickly. In the current round of appointments we have asked the Government to think again about that quantum of time because that is a very fair point. We have some very skilled, capable, experienced people and we could and should take advantage of their capabilities. Referring back to what my colleagues have said and we have just been discussing in relation to the Deloitte's report, I would also say we had to find ways with a very large board to work together and take advantage of the capabilities of board members. For example, now we have had a little bit more time to work this through we are a year into a programme by which we have given board members the role of sponsoring particular projects. Jeannie is responsible for a very successful project called Working Better, which is about flexibility at work. Doing more of that is giving Commissioners more scope to exercise leadership and be spokespeople for the Commission, which I think is also important.
Q126 Lord Morris of Handsworth: Looking back to the last point you made about giving the Commissioners more responsibility to speak out, what would you do differently?
Mr Phillips: There are many things I would do differently, but in response to your particular question one of the things we are thinking about now is identifying Commission leads in particular areas, for example gender, race, disability, so there is an identifiable Commission voice and also a Commission with whom stakeholders can identify.
Q127 Lord Morris of Handsworth: With respect, Trevor, the criticisms which were evidenced before us were largely not so much about structure but leadership, and leadership in the context of the Chair. In the light of the experience of the resignations, from a leadership perspective from the Chair what, if anything, would you do differently?
Mr Phillips: I am sorry, I am trying to understand exactly what you are asking. What would I do differently in relation to?
Q128 Lord Morris of Handsworth: In the context of your leadership because a large portion of the criticisms that have been evidenced to us was about criticising the leadership, the Chair. That is the evidence we have got. You have talked about changes in terms of Commissioners taking lead responsibility and other possible changes that can be made. What I am asking you is what would you do differently within the context of your own leadership of the Commission in order to get the best out of the Commissioners?
Mr Phillips: I think I would say two things. First of all, I want to return to a point I made very early on in this session. I think I would have sought more time to create the Commission. That was something I should have thought more about. We discussed it as a board and decided we should not delay, but if I were looking back with perfect hindsight I would say we needed more time. Why is this important in the context of the question you have asked me? That would have given me more time to work with the Commissioners, to get to know them better, to bring them together more, because we did not have enough time in that set-up period to work as closely and to get to know each other as well as we would have liked. Personally, perhaps I ought to have paid more attention to that than I did. If I understand the question you are asking me, that is one of the kinds of things I would have done.
Q129 Chairman: What do you understand your role to be as a non-executive Chair in relation to the chief executive?
Mr Phillips: My job as the non-executive Chair is first of all to lead the board, to make sure the board is discussing the right things, making the right decisions at the right time, that the board is holding the executive to account or it is carrying out our decisions as a board and, thirdly, I guess to my part, a leading part I guess, in being an ambassador and spokesperson for the Commission. It is not my role to manage the operations of the Commission.
Q130 Chairman: Do you have a job description?
Mr Phillips: Yes, I do.
Q131 Chairman: Did you agree a job description with Dr Brewer, the chief executive, and the Department?
Mr Phillips: I have a job description which is agreed with the Department.
Q132 Chairman: With the Department?
Mr Phillips: Yes.
Q133 Chairman: Perhaps we could see a copy of that.
Mr Phillips: Yes.
Q134 Chairman: But it was not agreed with Dr Brewer?
Mr Phillips: I was appointed before Dr Brewer was appointed.
Q135 Chairman: Are you aware of the Nolan Committee principles?
Mr Phillips: Yes.
Q136 Chairman: Do you think that you have worked within those principles throughout your time on the board?
Mr Phillips: As best as I could, yes.
Q137 Lord Lester of Herne Hill: Could I ask about conflicts of interest? You are the co-founder of the Equate Organisation consultancy.
Mr Phillips: Correct.
Q138 Lord Lester of Herne Hill: I think you are a majority shareholder?
Mr Phillips: I am not now. I was as at the beginning but I am not now.
Q139 Lord Lester of Herne Hill: Dr Brewer, the chief executive, it seems from what we have read, repeatedly tried to persuade you to stand down from the Equate consultancy to remove the perceived conflict of interest between your function as Chair of the Commission and your private financial interest. Is that correct?
Mr Phillips: No.
Q140 Lord Lester of Herne Hill: It is not correct?
Mr Phillips: No, it is not correct. I set up that consultancy when I moved to the Equality and Human Rights Commission for the simple reason that I was a part-time Chair working three to three and a half days a week and I wanted to be clear about how I dealt with anything I did in the rest of my week. Before I accepted the appointment I wrote to the Permanent Secretary at CLG asking his advice and permission to do so. He wrote back to me saying that such activity was permissible and as a result of that I then set up this company to make sure that anything I did was done transparently and it would be done through that company. That was the idea of it but in practice it actually did very little.
Q141 Lord Lester of Herne Hill: You did not hear my question, I think. My question was whether it was right that the chief executive repeatedly sought to persuade you to remove the perceived conflict of interest and you said that is not right, but are you sure about that?
Mr Phillips: The chief executive gave me advice about this, as did the Commission's own lawyers and, indeed, my own lawyers.
Q142 Lord Lester of Herne Hill: What was their advice?
Mr Phillips: That there would be a
perceived conflict of interest. As a
result I stood down as a director of that company on
Q143 Lord Lester of Herne Hill: That was the effect of the advice that she, among others, had given you. That is right, is it not?
Mr Phillips: It was the effect of my own consideration. I took the advice, but in the end you have to make these decisions for yourself. That seemed to me to be the right thing to do here.
Q144 Lord Lester of Herne Hill: Why did it take so long?
Mr Phillips: To stand down? Actually, the truth is that we set up that company and it did one task but within months I came to the conclusion that it was effectively not doing what I had hoped it would do, which was to ensure transparency, but simply caused more difficulties both for the Commission - this is the most important thing - and for my colleagues, and that was why I stood down.
Q145 Lord Lester of Herne Hill: I wonder if you can explain this. On your own website it still shows you both as Chair of the Commission and also as connected with the Equate Organisation and when one looks at the Equate Organisation on the website it says it is no longer accessible because it is under reconstruction. Something seems to be odd about the web. Can you try to explain that to me?
Mr Phillips: I cannot explain it to you. I have to confess the website set up in my name is not one I look at at all. If it still has that connection in that way then I will look at it now.
Q146 Lord Lester of Herne Hill: Did the Cabinet Office give legal advice on the propriety of the apparent conflict before you stepped down?
Mr Phillips: They gave some advice on the perception, that there was a perception of conflict. There was at no point any advice that said there was an actual conflict, not least because, as I said, before I took up the post I sought advice in writing, I received advice from the Permanent Secretary in writing and at no point did anyone say to me that this was not something that one should do. It is worth saying that it was not by any means a novel arrangement.
Q147 Lord Lester of Herne Hill: I must be careful not to stray into PAC territory so it may be that I will be stopped from asking this question. Of the three people you brought from the CRE, two of them are now in another consultancy with close links with Equate, are they not?
Mr Phillips: No. There are two things. One is, if I may say, Lord Lester, you keep saying that I "brought" people from the CRE with me, and I just have to emphasise not in fact nor in spirit is that the case.
Q148 Lord Lester of Herne Hill: That is not quite right. Forget about the legalism, one of them was your special adviser at the CRE, was she not?
Mr Phillips: No, she was not. She was my special adviser for about a year and a half and then she became a director of the CRE. She was brought into the transition team by the programme director prior to Nicola Brewer taking over as chief executive and then subsequently rehired by Nicola Brewer.
Q149 Lord Lester of Herne Hill: The three of them are close to you. You would not have let them be brought over unless you wanted them to be there, would you?
Mr Phillips: Honestly, Lord Lester, this was not my call. It was a judgment that was made by the chief executive. She asked me about a couple of the individuals, she asked my opinions about them, but it was her call and I did not ask for anybody to be, as you put it, "brought over". There was no reason for me to do so.
Q150 Lord Lester of Herne Hill: Two of them at least founded and are still active in the Dignity Management Consultancy which has links with Equate, is that not right?
Mr Phillips: No, it does not. At one point what Equate did, because there were many things which I did not want to do which people would ask Equate to do, was we said we would refer people. There was no business relationship, no remuneration involved, simply we would refer. There were a number of other individuals and companies for whom that was true. For a year and a bit now I have not been part of that at all for the reasons that we have discussed.
Chairman: I think we are now getting into PAC territory.
Q151 Mr Timpson: Mr Phillips, in The Guardian newspaper you wrote an article on 5 September where, amongst other things, you acknowledged the importance of public confidence in the Commission in the carrying out of its work. To that end, do you think it is helpful that for your reappointment, unlike Commissioners, which you also acknowledge in the same article, you did not have to compete with other talented people?
Mr Phillips: I think that is a matter for the Secretary of State.
Q152 Mr Timpson: I am asking for your opinion. We have talked about perception a lot and we need to be clear from your perception you feel that the way you have been reappointed gives as much public confidence that the Commission needs.
Mr Phillips: All I can say to you is that really is a matter for the Secretary of State, the Government, and not for me. I would have been happy to undergo any process that I was asked to undergo.
Q153 Mr Timpson: Do you think it would have been better for public confidence in the Commission if you had gone through an open competition and been selected through that process rather than just being nodded through by a minister?
Mr Phillips: I do not think the process involved was nodding through.
Q154 Mr Timpson: That is the perception of some people.
Mr Phillips: Well it might be, but I can tell you I went through, as all public officials have to now, a pretty rigorous appraisal done by the civil servants and then signed off by ministers. There was, as you put it, no nodding through. Whether, in effect, re-advertising the post would have increased public confidence or not, I do not know. That was not an option that was raised with me.
Q155 Mr Timpson: You honestly do not know whether it would have raised public confidence? Surely if there had been an open competition and you had been seen to have been chosen as still being the best person for the job that must improve public confidence, must it not?
Mr Phillips: There are many ways in which one could do that. For example, I know that this Committee has discussed the question of whether appointees to public bodies should appear in front of a parliamentary committee and there are other ways in which you can do that. I am simply saying that I do not think it is my place to make a choice between those.
Q156 Mr Timpson: In your article you allude to the competition for Commissioners' places. I take it from that you think that is the right process for Commissioners to be appointed or reappointed?
Mr Phillips: I was explaining what I thought was the Secretary of State's train of thinking on reappointments about the Commissioners.
Q157 Mr Timpson: Do you not have a view on what is the best way to appoint a Commissioner?
Mr Phillips: I think the way we appointed Commissioners previously and the way we are appointing Commissioners now is completely in line with the appropriate principles, it is overseen by GO, validated by OCPA, and this seems to me to be the right way to do this.
Q158 Lord Dubs: You have partly answered the question I am about to put to you. In Scotland they do things somewhat differently. The Chair of the Scottish Human Rights Commission is appointed by and reports to the Scottish Parliament and is accountable to Parliament, not the Government. How would you feel about such a model?
Mr Phillips: If that was what Parliament decided I would be completely happy to go along with that model. If I may venture a personal opinion ---
Q159 Lord Dubs: Yes, please.
Mr Phillips: I am in favour of public appointees like myself being scrutinised by parliamentary committees in that way. I must stress that is a personal opinion, it is not a Commission view; it is not anything else.
Q160 Mr Sharma: When you were appointed there were some queries as to why you are working almost full-time, five days or less. Normal practice in other major organisations is that non-executive chairs work for two or three days. Why will you be working four days per week for the Commission? What about a conflict with permanent staff, particularly with the chief executive?
Mr Phillips: I do not think there is anything that says the number of days you work leads to more or less conflict. That is partly a function of the clarity of job roles, and sometimes of personalities perhaps. In my particular case the Government has asked me to do this on a four day a week basis because they think that is what it needs to be an effective Chair, and I think that is probably true at this time. I do not think, and I frankly hope, it will be true forever and certainly not true for my successor.
Q161 Mr Sharma: Generally it is felt if you are working full-time, or near full-time, not you personally but whoever is in the position, you may get involved in the day-to-day running of the organisation which is in direct conflict with the chief executive officer. Do you see that there is any conflict like that?
Mr Phillips: To be honest, that is not a function of the length of time you work, it is a function of whether you decide you want to do that. I want to be absolutely clear, that is not what I regard as my function. The board has enough work in representing the Commission, in setting strategic direction, in trying to work with stakeholders without wanting to get involved in operations. That is certainly not what I think my role is and not what I am fitted for.
Q162 Chairman: We have had provided to us under FOI an email of 13 November from the Propriety and Ethics Cabinet Office and it says this: "On average non-exec chairs of large public bodies probably serve two to three days a week. This should be sufficient. More than this risks creating conflict between the chair and the CEO as it can encourage the chair to become involved in the day-to-day management of the body which is of course the responsibility of the CEO." Would you disagree with that?
Mr Phillips: I would not disagree with that, but I would say in our particular case, given the age of the body and the weight of work that we have to carry out, some of which you have raised, there is far more than I think can be done by a six day a week chief executive and six day a week Chair. If I may come back to Lord Morris' point, that is one of the reasons that I think we have to engage the Commissioners more than we were able to do at the beginning.
Q163 Chairman: Is this not getting to the stage now of having a dog and barking yourself? We discussed the role of the chief executive earlier on, which is a more strategic oversight role, rather than doing the work yourself.
Mr Wadham: I was reappointed as the full-time Deputy Chair of the Independent Police Complaints Commission, as was the Chair of the Independent Police Complaints Commission, Nick Hardwick. We were both reappointed without any process and maybe that was wrong, but that was the case, apart from the appraisal that Trevor has mentioned. In my experience it was very simple, at least at a theoretical level, to decide what the job of the chief executive was and what the jobs of the chair and deputy chair were. We had a chief executive in terms of running the organisation as opposed to dealing with issues of leadership, and in some cases with the Independent Police Complaints Commission taking responsibility for the supervision and oversight of particularly significant investigations including, of course, the investigation into the shooting in Stockwell, whereas obviously the executive had a key role in relation to sending out the investigators picking up the shell cases, et cetera, and providing the evidence that led to the Metropolitan Police being convicted of a health and safety breach. I do not think you can say it is inevitable that a chair of a non-departmental public body can never be full-time. As I say, that is an example and it worked well. There are criticisms of the IPCC but I do not think they are connected with the role of the board as opposed to the role of the executive. I have done it from the other side and it seemed to work quite well.
Q164 Chairman: So you would also disagree with the Propriety and Ethics section of the Cabinet Office?
Mr Wadham: I know that the Cabinet Office were consulted because I was involved in that process in relation to setting up the Independent Police Complaints Commission. They took the view in that case it was sensible to take forward the arrangements that I have just outlined. There is no reason why it cannot be successful, and I think it is, in relation to the Equality and Human Rights Commission.
Q165 Lord Lester of Herne Hill: Although that is true and, for example, the Equal Opportunities Commission is a good example where one remembers full-time chair, full-time chief executive, does not everything then depend upon having a chair who is able to delegate properly and give the chief executive, someone of great quality, a real role properly so there is a separation of powers between them rather than what some may say has happened in this case?
Mr Wadham: I am sure that is the right approach. Maybe it is above my pay grade but it has worked at the Equality and Human Rights Commission too.
Q166 Chairman: While we are on pay grades, the Propriety and Ethics Cabinet Office suggests that remuneration is towards the top end of levels offered to chairs of NDPBs. Do you think you are worth more than the Prime Minister, Trevor?
Mr Phillips: I am not paid more than the Prime Minister.
Q167 Chairman: You are pro rata.
Mr Phillips: No, I am not. The figure that I am paid is £160,000 pro rata.
Q168 Chairman: Pro rata that is more.
Mr Phillips: No, I am not paid £160,000. At the moment I am paid four-fifths of £160,000. My full-time salary is quite a lot less than that of the Prime Minister, and I think that is right.
Q169 Mr Sharma: Baroness Campbell disagreed with the decision to reduce the size of the board and it has been said that the board of EHRC Commissioners was too large and desperate to provide good governance: "I do not agree. I believe that the cultural and political breadth of Commissioners was a strength and not a barrier". Why do you think the Commission will benefit from having fewer members?
Mr Phillips: My colleagues may contribute
to this. I did not feel immensely
strongly about this, but this was one of the outcomes of the Deloitte's
exercise. The board itself, when it
received the recommendation from Deloitte's that the board would function
better if there were
Q170 Chairman: Before we go on, I think Kay has to leave.
Ms Carberry: Thank you very much for allowing me to leave early. If I could just comment on that question. I agree with Baroness Campbell. I was one of the Commissioners who thought there was a strong case for leaving the board as it was, but we were in a minority and, as with some of the other points that were made during the course of that Deloitte's review, what emerged was a consensus so, like others, I had to accept what was the majority view. That was what happened on that particular recommendation.
Chairman: Thank you, Kay. I think we would like to go on to talk about some human rights issues now.
Q171 Mr Sharma: We have received very disappointing statements where previous Commissioners have said that the first two years have been a disappointment in various respects. Liberty wrote to say that the EHRC has failed to fulfil its duty to promote and protect human rights. Do Liberty and your former colleagues have grounds to be disappointed by the Commission's performance?
Mr Phillips: I think that a balanced account of what we have done would say that we have done a great deal. We would have liked to have done more. Let me start by saying three of the things that we think are most important have been the human rights inquiry which we conducted, which took evidence from nearly 3,000 people, the largest piece of work of its kind, and if I may say so I hoped would add to the body of work which this Committee has done. I am not simply saying this to flatter the Committee, but until we came along and did that this Committee, as far as I was concerned, was the only body that was doing work of that level in this country. The strategy which we have released today is important. The accreditation as a human rights institution is extremely important, bearing in mind that people perhaps often forget when we talk about human rights work we are also talking about the enforcement and carrying out of the seven treaties to which the United Kingdom Government is party. We have submitted shadow reports on all of that. We have written and published a simple guide to human rights called Ours to Own. We have campaigned on a series of issues and we have - John may say a few words about this - pursued a number of key cases, for example the Jason Smith case which guaranteed protection for our troops on the frontline, and the Coleman case and so on. All of us, of course, would have liked to have done more but it would be unfair to ignore the many things that the Commission has done, and when I talk about the Commission I am now not talking about me or the board, I am talking about our staff who have done tremendous work and shown leadership. It would be unfair simply to dismiss that work as - to use your word - "disappointing".
Q172 Mr Sharma: The comments that I have just made, one was attributed to an external organisation - Liberty - but your former colleagues also told us a month ago that the EHRC simply was not operating as a human rights commission. Let me ask, is this a problem that you recognise? If you do, is it being addressed, or do you think they were simply wrong?
Mr Phillips: I do not think it is a legitimate assessment. Let me ask John to respond to that.
Mr Wadham: I worked for
Q173 Lord Morris of Handsworth: Forget what Liberty says, I am asking do you recognise the allegation that the Commission is not operating as a human rights commission?
Mr Wadham: No, I do not. What I recognise is frustration on behalf of members of the board and the staff in trying to ensure that the Commission that was set up new from the three previous legacy commissions has taken time to deliver on human rights as well as on equalities. When we inherited the work from the legacy commissions we were in a very important case in October 2007 in the European Court of Justice relating to a case about disability and carers. It was a very important case. That had taken years to get to that point. Not surprisingly, we did not have a series of human rights initiatives and we have now. Trevor has already mentioned the human rights inquiry, which is important, but there are many other examples which we have described in the document we published today including, for instance, we have intervened in more cases in the Appeal Courts than any other organisation ever in the existence of the United Kingdom. That is a pretty proud boast and you may say perhaps we should be doing something else. In fact, we are doing other things. There are issues about ensuring that both internally and with the United Nations and the other processes all of the human rights treaties are properly recognised in this country and we hold the Government to account in relation to those treaties. We have commented on a number of issues, including, in the views of some people perhaps too aggressively, in relation to the proposal to extend detention for suspects of terrorism to 42 days. We threatened to take legal proceedings against the Government and some people, Lord Lester particularly, were a bit anxious about that proposal, but we did do so. We have raised questions about the way in which profiles following DNA tests are taken and retained. We have written to the Association of Chief Police Officers saying that their actions are unlawful. We have been concerned about a number of other issues. As I say, we are doing the best we can so far. We and Francesca Klug, who I have known since 1999, would like the Commission to have already done more. My job, at least on the legal side of it, is to do as much as we possibly can and I think we are doing a good job. This strategy that we have published today demonstrates how we are going to take that job further.
Q174 Lord Morris of Handsworth: Can I take it that the Commission welcomes all emphasis, from whatever source, on human rights?
Mr Phillips: Of course.
Q175 Lord Morris of Handsworth: You do not think any of it is counterproductive?
Mr Wadham: We have discussed with our NGO colleagues some of the issues that the Commission should be dealing with and we will continue to do so. I hope that we will continue to have a dialogue with those groups of people and the Ministry of Justice and others. I hope that we are open and listening to what other people think we should do and will take those into account when we take action and deliver on our remit. We are delivering on our remit. Personally, I would like us to do more and hope we will continue to do more and today is a very important step in the direction of that future.
Mr Phillips: May I add one point to this, Lord Morris? Sometimes some of the work that we do which, if you like, looks like pure equality work is actually human rights work. I will give two examples. One, we published in the summer what we call the Equality Measurement Framework which most people now say is a groundbreaking piece of work that will help all of us assess how we are doing on equality, but it is based entirely on a human rights framework, that is to say equality of what. It is entirely based on human rights. A lot of people in the human rights sphere have been very excited, and I use that word because that is the word they have used to me, by the way in which this begins to bring together the spheres of equality and human rights rather than making them rivals. On particular issues, for example work we have done on protecting women who have suffered violence, it looks at some level like public sector equality duty kind of work but underpinning it is that local authorities have an obligation to protect women's human rights under Articles 2, 3 and 8. We have tried to bring the human rights framework to bear on what we do on equality.
Q176 Dr Harris: Mr Wadham, you said that you have taken more legal cases than any other organisation before you. What are you comparing yourself with? Was there another overarching human rights commission that was comparable to you with your funding and your breadth, or is it just you have done more than any of the individual commissions on their own?
Mr Wadham: I was including within that the human rights NGOs that also intervene. Of course we have more resources and you may say that is not much of a success but, in fact, I think it is a considerable success.
Q177 Dr Harris: It would only be noteworthy if you were doing less than a barely funded NGO, would it not? It is not noteworthy to say you are doing more than an NGO when that is your job.
Mr Wadham: I said that we were doing more than all of the other NGOs combined. Or I did not say that, but I am now saying that. I am sorry if I did not make that clear.
Q178 Dr Harris: That is helpful. We do quite a bit of human rights work on this Committee. To what extent do you have a work stream when the Government publishes a Bill to say, "We are going to give of our expertise to this Committee", or when we publish a report you are going to respond to it saying where you agree or disagree, whether it be on a Bill or a big theme? Do you have a work stream to do that?
Mr Wadham: We have done that work sporadically. We should do it more consistently, and I hope that we will do so now we are in a better position to make decisions about priorities. We do examine Bills for compliance with the conventions, not as consistently in relation to the Bills that you choose, that is true, and we should do more of that work.
Q179 Dr Harris: I do not know, you may not want to duplicate so that is not a criticism.
Mr Wadham: We would not want to duplicate.
Mr Phillips: As a matter of principle I think the board's position is we should, as far as it is possible, be in partnership with this Committee to promote the value of human rights legislation, human rights instruments and the principles of human rights.
Q180 Dr Harris: I think if we were an equalities committee of Parliament the impression is that you would be all over us, which is not a bad thing, but we are human rights and, therefore, we do not see much of you.
Mr Phillips: If I may interrupt you. I would be very distressed if that were the case or anything we did indicated that. I would be keen to hear if that were the case. That is why at the very beginning of this session the first thing I said was to thank the Committee for coming to visit us because that is the nature of the relationship that we would like to build with this Committee.
Q181 Dr Harris: I just want to ask about this report today. I find it surprising, given that one of the criticisms was that there is a bit of unnecessary spin in the Commission, that this report would be published today when you are here before us. Mr Phillips, I guess it is your responsibility. Is it a random happenstance that the human rights reporters might be writing about your important report rather than about this session today?
Mr Wadham: We decided to publish this today because we have been working on our proposal on human rights since the human rights inquiry reported and it seemed convenient to us to want to talk to you about human rights issues and that is clearly what we are doing.
Q182 Chairman: Why could it not be published yesterday so that we would have a chance to properly consider it and the press would have had a chance to analyse it and decide whether we are asking the right questions or not? Why today?
Mr Wadham: We did try to publish it a couple of days ago and there have been some delays in relation to the process. I would have liked to have got the report to you earlier.
Q183 Chairman: Also when we had the Commissioners here before you published a document that day as well, did you not?
Mr Wadham: Sorry, I do not understand that.
Mr Phillips: Forgive me, I have forgotten exactly what it was we published on that day. There was no particular connection. If, Chairman, you are asking a specific question, there is no attempt to deflect attention from this session.
Lord Lester of Herne Hill: I have read the document.
Q184 Dr Harris: I am not going to talk about the document, you will have a chance in a moment. It seems to outsiders that you might be seeking to bury bad news, whether that is this appearance or the report. The same allegation can be made in a sense about the 42 days because that had already had a lot of publicity and was likely not to succeed very well in Parliament. There are a whole load of other human rights issues in counter-terrorism on which, speaking for myself, I recognise this Committee has issued as strong recommendations as the one that the public understands and yet it is seen that the Commission came in on something that was the most public, whereas one might argue that you should seek to raise the profile and importance of things that are somewhat below the radar in media and parliamentary terms.
Mr Wadham: As we have said it would be good if we could have done more and will continue to do more. In fact, in relation to that we were also very concerned, as were others, about the provisions relating to inquests and coroners in the context of secret inquests which we made statements about and produced briefings on. That is not the only time that we have intervened in the debate around the balance between protecting people from terrorism and human rights. In the future I hope that we can do more of that.
Mr Phillips: On the 42 days, I would say one of the reasons for us to be interested in that was because we believed we could do something about it. We are not simply here to offer commentaries on issues. That was important to us because we felt we could have an impact on that situation.
Q185 Dr Harris: I agree that case could be made. I have got one more question. Baroness Campbell in her written evidence says that she considers "the Commission's human rights remit was marginalised due to the Chair's consistent lack of appreciation of the importance and effectiveness of the Human Rights Act". Her view is: "He believed that emphasis on human rights was counterproductive due to widespread media hostility to the concept". Do you have a view that it is counterproductive because of media hostility to be dealing with human rights? Why do you think she said that?
Mr Phillips: I cannot possibly tell you why she said that because actually my view is exactly the reverse. I think at the heart of our human rights strategy the most important thing for us is to make human rights, the Human Rights Act, the conventions that this country has signed up to, relevant to the people of this country because I think they are. That is why in the work that we have done, which is published in both the strategy and the inquiry, we have done surveys to show that four out of five British people believe that there should be a human rights framework, human rights legislation. We believe strongly in supporting and promoting human rights.
Q186 Dr Harris: Have you had strong words to say in public about the proposal to abolish the Human Rights Act?
Mr Phillips: You will see in our document published today that we set out five principles, the first of which is the idea that whatever different political forces do and, as you know, there are different views floating about the place, there should be no regression from the current position. We are absolutely clearly about that. If I may be straight with you, we are not going to get into an argument with one political party or another. What we have done is set out very clearly where we stand and anybody who wants to deal with human rights, the Bill of Rights and so on, has to start from that place with us.
Q187 Chairman: Can we carry on with the document you published today because I have read it and it did not take me all that long I have to say. Apart from the specific commitment you have just mentioned, which is very welcome, it is a pretty vague document. There is a full page or so of recommendations but they are not very specific, there are no timescales for achieving them, no measurable milestones or benchmarks, no methods of measuring success or outcomes. A lot of it is just quite general verbiage with motherhood and apple pie commitments rather than very specific proposals. Are you happy with the document?
Mr Wadham: I am sorry that it has not worked for you. The development of our human rights strategy is important for the Commission. It sets out a vision for us for the future. It mirrors the Commission's overall three-year strategy which could not include as much detail on human rights as we would have wanted because the human rights inquiry did not report at the time we had to produce the strategy. We have set out the details in there and elsewhere of some of the things we have done. This sets out our overall high level vision for the future about what we are going to do, including the point that Trevor just made particularly on page 20 which will be a key issue, I guess, in the debates from now until the election about what kinds of human rights mechanisms we have here and, secondly, all of the political parties have policies towards developing some kind of Bill of Rights, and we would hope that will be a key part of our work in ensuring protection at the level that currently exists with the Human Rights Act.
Q188 Chairman: From the inquiry that you had that took a year, and I gave evidence to it as you know, one of the recommendations was that the EHRC "will assume a leadership role in raising public awareness of the importance of human rights and the Human Rights Act". Is that not blindingly obvious to start with? Why did you need an inquiry to come to that conclusion? You lost a year in getting to where you are now.
Mr Phillips: First of all, and let me pay tribute to Dame Nuala O'Loan and Professor Klug, that was not the only thing the inquiry produced. Personally, I thought the inquiry process itself was extremely important. They brought nearly 3,000 people into a debate about human rights. In the human rights inquiry report they set out examples of the way that human rights affect ordinary people. They made proposals for what the Commission should do as well as what Government should do. There were many things other than simply saying that the Commission should assume leadership. I do not think there is anything wrong with asserting that though and saying to the board, "We think that is what you ought to do". May I just make one other point. As in three of the protected grounds in the Equality Act we were starting pretty much from a standing start here. Part of what we had to do was to draw all of those who had been working on human rights, the British Institute of Human Rights, this Committee and so on, to work with us. We had to establish an evidence base. We had to try to make sure that we had skills. We devoted some effort to establishing ourselves as a national human rights institution which is not, as you will know, a simple task of writing a letter and then you get the status. We had to work for that. If I may say, I would completely concede that all of us would have liked to have done more but there was a great deal of work done by our people on this and I would not want that to be forgotten in this discussion.
Q189 Lord Lester of Herne Hill: What I do not understand is why the document you published today could not have been published within the first year of the Commission's life. I do not understand that. John Wadham and I could have done this document, I reckon, in about a week. There is nothing in this document, I believe, that is novel, surprising or really measurable. I simply do not accept, and I want you to understand that, the answer you gave just now. There is a lack of energy and a great deal of lethargy about this and I really am very sorry. Why could this not have been published without a human rights inquiry at the very beginning and then by all means have your inquiries later if you want to?
Mr Phillips: John may say something about this. There are many things in which that could be said to be true but, as the Committee said to me at some length earlier on, it is important that the board moves on this together. This was what the board decided it wanted to do. If we were working as individuals you might well be right, but we are not.
Mr Wadham: Some of the things that we all have to do may not seem to be very innovative, novel or exciting but they are the things that are set out here. If you find them a little bland it may well be because there is a hill to climb in relation to people in this country understanding what the importance of human rights protections are. In specific terms in relation to the Human Rights Act our inquiry demonstrated that more than 80 per cent of people do believe there should be mechanisms and law to protect human rights. Nevertheless, there are still some issues: we have a major political party who want to abolish the Human Rights Act, so it is clearly controversial, and collectively we have not persuaded everyone that the Human Rights Act should be here to stay.
Q190 Chairman: This is precisely Lord Lester's point. This document could have been written in the first week of the Commission. I have read it. I could have written it and I am not a human rights expert like Lord Lester or you, I am a lay chairman, as it were, in this respect. One of your recommendations is: "We will engage fully with the work of the Joint Parliamentary Committee on Human Rights". That is very welcome but it is not exactly rocket science, is it? These recommendations are very general aspirations that do not require a great deal of research, development or a year's thinking about, they can be put together in a week or two as Lord Lester says.
Mr Wadham: The reason that the board chose to start with the inquiry was because there is a rich seam of evidence in the inquiry, not just about the fact that human rights are good but also that human rights when embedded in the public sector work and deliver more for the public sector as well as for individuals.
Q191 Chairman: We knew that anyway. We knew that from the work that we and many other bodies done. Effectively you duplicated work that had already been done instead of just picking it up and running with it when you started.
Mr Wadham: I do not think we duplicated. This is a much more detailed and evidence based contribution than other people have been able to make so far. As Trevor says, Nuala O'Loan, Bert Massie, Francesca Klug and other Commissioners were involved in that process. The board collectively took that direction and we are now in a better position than we would have been. I hope that helps us to ensure that the Human Rights Act and its mechanisms are protected from any undermining by whichever government might be in place. We have taken some steps forward. The board agreed the recommendations from the human rights inquiry without any amendments whatsoever and some of those include increasing the work of the Commission itself. For instance, both in terms of whether the Commission should be able to fund and assist people in human rights cases, which it currently is not able to do so, and, secondly, the issue about the extent to which there should be a parallel human rights duty that is equivalent to the equality duties which are going through this House in relation to the Equality Bill.
Q192 Chairman: Have you got enough staff working on this? I understand that you have got two senior members of staff working on human rights issues, albeit one for a limited period, and you have obviously got staff working on cases, but is that the sum total of the human rights capacity of the organisation?
Mr Wadham: No, it is not. We have experts across the Commission now on human rights who are identified as such. As Trevor has said already, much of the work the Commission does internally and externally is sometimes labelled as equality. For instance, the work that we have done in relation to what we call the map of gaps, which is about ensuring that women subject to violence have resources in their local areas, in many countries a human rights commission would be doing that work. Sometimes that is regarded as an equality basis and sometimes it is regarded as a human rights basis. This would not be acceptable, but if we could restructure a lot of the work that we currently label as "equality" as "human rights" you would then see, not surprisingly, probably 50 per cent of the work of the Commission is in fact human rights because equality is a fundamental human right. I do not accept that. Of course it is true that we could do more and I would like us to do more and I hope we continue to improve and deliver more in the future.
Mr Phillips: Can I add one point in
relation to what you have just said. We
also fund other organisations. We have
funded work by BIHR and we fund work by
Q193 Lord Lester of Herne Hill: I am dismayed, John, by what you said just now because what you were saying, as I understand it, was you would like to see power to assist individual human rights cases as with equality cases and you would like to see a general human rights duty capable of being enforced. Are you aware that during the passage of the last Equality Bill there was consent right across all three parties in the House of Lords and I think the House of Commons that we did not want your Commission to be submerged having to deal with thousands of individual human rights cases and, therefore, that your power be carefully restricted only to doing judicial review or important issues? Secondly, the idea of a general human rights duty was rejected. Would it not be more convincing if your Commission concentrated on its existing powers and in some document indicating the kinds of practices, procedures and rules that you want to change rather than dealing with generality or seeking further powers before you demonstrate you can use your existing powers properly?
Mr Wadham: I understand why you say that, Lord Lester. That was a recommendation that came from the human rights inquiry which included, of course, Dame Nuala O'Loan, Francesca Klug, Bert Massie and others, and it was agreed by the board wholeheartedly with all of the other recommendations. I understand your concerns. One of our difficulties in relation to our specific remit to fund cases is although we can intervene and although we have our own powers to take in our own name, there are some strategic cases which I think it would be very sensible for us to support. I realise that would mean we would attract others whose cases we would not want to support and in the past I thought the balance was as it should be in the Equality Act but, I am afraid to say, I have changed my mind since that point. Secondly, in relation to the human rights duty, one of the key issues that came out of our inquiry was the extent to which those in the public sector did not recognise human rights. In fact, if you look at the written evidence given to the inquiry you will find that when we asked the question, "What processes do you have in place to ensure human rights is embedded?", although the first sentence of that answer concerned human rights, the rest of it was all about equality, partly because we and the previous commissions have been successful in getting the message embedded. We have not done that with human rights. If we do not have a human rights duty and only rely on litigation to get public sector organisations to understand the issues we will not succeed in the long-term. I think a public sector duty for human rights is a useful parallel to the equality duty.
Q194 Lord Lester of Herne Hill: There is a public sector duty, is there not, in s.6 of the Human Rights Act?
Mr Wadham: I do not think that is quite correct. I do not know whether it is sensible for us to argue that point.
Mr Phillips: You rightly raised the question about why this particular strategy, why did it take so long and so on. This seems to me to be rather a good example. It is fair to say I would have started where you started, Lord Lester, but it is quite difficult to go through an inquiry where you take evidence from 3,000 people who are experts and they tell you they think you should be doing something different and then simply ignore it.
Q195 Lord Lester of Herne Hill: I did not say that.
Mr Phillips: It may not be so difficult for you but our board would find that quite hard. To me, that is one of the reasons why it was worth going through the process of the human rights inquiry before settling on what may seem to you, as experts, rather self-evident propositions.
Q196 Lord Dubs: Can we turn to the concept of "fairness", please? There have been some criticisms of the Commission, for example by Baroness Campbell, that you focused on "fairness" rather than equality. If that is the case, what do you mean by "fairness" and why not talk about equality instead? Are these differences of substance or are they simply semantic points?
Mr Phillips: They are differences of substance. I am interested to hear this. This is not a debate that was particularly strongly contested around the board table. I do not recall this being a matter of argument. We published a document about 12 months ago which was called Fairness which sets out in summary the view of the Commission that fairness is a way of bringing together the equality, human rights and good relations components of our work. I know there are lots of arguments about whether this is cosmetic and so on, but I would say this: our equality work should not be just about outcomes or discrimination, it is also about process and the way things are arrived at. We can have perfect equality but in the complete absence of a human rights culture. Where we use the word "fairness", what we are trying to do is bring together these different concepts. In a sense, we think our Commission has been charged with the duty of trying, if you like, to create equality plus, and that is what we mean when we say "fairness". As I say, we set this out in some detail a year and a bit ago and in practice we do not think that there has been much dispute about this.
Q197 Mr Sharma: A former colleagues of yours, Baroness Campbell, has expressed concerns about disability issues which are not sufficiently promoted. It has been suggested that the Commission is not making progress on disability. Why is this?
Mr Phillips: I do not think that is right. I can share some facts with you. Let me start by saying that we have as one of our statutory committees a disability committee which plays an active and full role in the work of the Commission. Cases which touch on disability and, indeed, on human rights go before that committee to consider whether we should pursue them or not. They also have an extremely powerful role in advising on enforcement and compliance action. For example, tomorrow when the disability committee meets I know that they will be considering issues to do with safety and security and it is my expectation that they will make some proposals for what the Commission should do which I suspect the board will adopt. The first point I want to make is there is a very active committee which Baroness Campbell herself created, recruited to and led very successfully until last year, at which point she handed over to the current chair of that committee, Alun Davies. We have an internal lever which makes sure that we are not backsliding. There are a whole series of things in relation to conventions, the Mental Health Act, elements within the Equality Bill which we have campaigned for, cases such as Coleman and the case we took in relation to the Crown Prosecution Service which we can go through, plus the work that we have done to establish the Commission as a UK complaints handling body responsible for dealing with complaints from air passengers, plus intervening in cases like the Liverpool taxi case where we have been very successful. In summary, what I would say is the Commission has funded about 38 legal cases on behalf of individuals which is 43 per cent of our legal casework, so it is actually a large proportion of all the work that we do; we have funded over 200 conciliation cases; undertaken 14 legal enforcement cases, which is about 30 per cent of our formal enforcement work; and we have taken about 100 pre-enforcement and compliance actions in relation to disability. I think that is a pretty substantial body of work. Let me say that of course we want to do more and there are big issues. The social care report, which Baroness Campbell herself led, was a terrifically good piece of work. Personally, I was disappointed that it did not get more attention.
Q198 Chairman: Is this From Safety Net to Springboard?
Mr Phillips: Yes. Personally, I was disappointed that did not get more attention, but in the end it is not the attention in the newspapers that matters; it is, was it a good piece of work, does it guide us well, and I think that will. The work that we launched on 29 April, which was launched by me and our Minister, Maria Eagle, on the issue of safety is a great platform for us to begin to tackle the issues of hate crime and it will be part of what we use to promote our work on the Pilkington case. There is a lot that we have done on disability. We are working with the ODI and others. There are things that perhaps we have not been able to trumpet as much as we could have done. One of the things I was very proud of was the work that our disability committee colleagues did to ensure that disabled people were not excluded from the Paralympic Games after rulings a couple of years ago. That was done by our Commission and it has made a difference in that area to real people. I am completely at one with Jane, we would like to do more, but I do not think that means we have not done a lot.
Q199 Chairman: I am going to put to you what Sir Bert Massie told us. He referred to the report from Baroness Campbell and he said that it was done and it was dismissed.
Mr Phillips: What was done and dismissed?
Q200 Chairman: The report that you have referred to, From Safety Net to Springboard. Then he went on to say: "I could not get resources allocated to disability or to human rights. Resource was always going elsewhere. Whenever I went public and criticised them on disability activity publicly there was a flurry of disability activity and since I have resigned there has been another flurry. It will not last, it is just a show".
Mr Wadham: I think the statistics that Trevor has read out would suggest rather than that account, the account is that we may have done more on disability than we have on the other equality strands. That seems to be the evidence from our statistics. Maybe we should have done more on everything, but that seems to be the case.
Q201 Chairman: He concedes you took a lot of legal cases, but he goes on to say: "My point is you do not enforce the law by simply waiting for people to come to you and take a case, you see where the law is not being exercised and you initiate things and that is what we were not doing. We were reacting but we were initiating".
Mr Wadham: I am afraid that does not accord with the statistics that Trevor has gone through. They are not just about cases; they are about enforcement actions, taking a serious approach to the Discrimination Act and the disability equality duty.
Mr Phillips: We have put considerable resources, for example, into marketing our role in relation to airline complaints, which is a big transport issue. As I said, a third of our legal enforcement cases are related to disability. There are many more where we have essentially taken pre-enforcement action and the target, if I can put it this way, has given up before we have had to go into formal legal mode. I do not think it is fair to say that the Commission has been sitting waiting; we have been very active on this front.
Q202 Dr Harris: I want to ask you about a couple of Equality Bill issues, mainly because we have had some evidence from the British Humanist Association submitted to this inquiry, and I declare an interest as Vice-President of the British Humanist Association. They feel that the view of the non-religious within the religious strand is not taken on board as much as it could be. They are not specific about whether that is due to an absence of expertise in the Commission, they just feel that is a concern. I wonder whether you feel there might be something in that and that might be an area of work you could look at.
Mr Phillips: We sit around the table with the British Humanist Association and the Secular Society on a pretty regular basis. I do myself. Once again, if I may say so, it is possible to make a general assertion but it is almost impossible to answer it unless we know what it is that we might have done that we did not do.
Q203 Dr Harris: The BHA is very concerned about the Census question and EHRC staff have supported them in that concern but have not taken it any further. In the Census asking, "What is your religion?" prejudges the answer and is discriminatory against them. They are disappointed that you have praised the Scouts and Guides for their inclusivity, for example, when they specifically exclude people when they might be the only youth club in town getting public funding and they can exclude the non-religious. They find it hard to understand why you say nothing about additional segregation created by religious discrimination for over-subscribed faith schools, of course not the only reason for segregation in communities but it cannot help, and the discrimination against teachers on the basis of their religion, and I could go on but I will not. Those are some of the specifics. Again, I would invite you to consider whether you might look into that and consider whether there is something that could be looked at.
Mr Phillips: They are good partners to us and, of course, we will always look into these issues. On some of the earlier points you went through, perhaps I can just remind you that we have funded the BHA's work.
Q204 Dr Harris: You have not succeeded in silencing them though.
Mr Phillips: Silencing them! If I may say so, I do not think that is relevant.
Dr Harris: I am not sure how relevant it is to my specifics.
Q205 Chairman: Let us just get an answer to Evan's specific points and then we will draw the meeting to a close.
Mr Phillips: We fund the BHA. You have raised a question about whether I praise the Scouts and Guides. It seems to me entirely possible to say Scouts and Guides are good organisations without having to sign up to a religious posture. They are two of the largest youth organisations in the country and from where I stand I think they do rather good work.
Q206 Dr Harris: He is misquoting me. I said the EHRC praises Scouts and Guides for their inclusivity, not for whether they do good work.
Mr Phillips: It is also true that in some respects they probably are extremely inclusive. I have to say if the criticism is that we must now take agin the Scouts and Guides that puts us in a very difficult position. The issue of religion and segregation, you and I have debated this and I think we are not particularly far apart. If you wanted to be a little more specific about what you would like to see the Commission say and do I am very much open to hearing that because it is central to our good relations mandate that all causes of division should be tackled.
Q207 Chairman: That is a good place to end the session. Thank you for all coming. It has been a long and gruelling afternoon for everybody, I think.
Mr Phillips: May I just say thank you for the time you have devoted to this and the courtesy with which we have been treated.
Chairman: Thank you.