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Industrial Law Journal 2011 Enforcing equality law: two steps forward and two steps backwards for reflexive regulation Bob Hepple Subject: Employment. Other related subjects: Human rights Keywords: Enforcement; Equal treatment; Equality and Human Rights Commission; Legislation Legislation: Equality Act 2010 Equality Act 2006 *I.L.J. 315 ABSTRACT The Equality Acts 2006 and 2010 took two steps towards the model of reflexive regulation of equality: the establishment of the single Equality and Human Rights Commission (EHRC) with extensive powers to promote equality, conduct inquiries and investigations and enforce the legislation; and the public sector equality duty which it was believed would make it necessary for public employers to engage with their employees and other interest groups. The Coalition Government is in the process of taking two significant steps which will undermine reflexivity and enforced self-regulation: first, restricting the EHRC to socalled core functions and substantially cutting the EHRC's budget, and second, failing to retain among the specific duties of listed public bodies the requirement of engagement. This article re-opens the debate on reflexive regulation in the context of equality, examining its advantages and disadvantages, and the likely effects of moving away from this model. 1. INTRODUCTION A key objective of equality legislation is to change organisational policy and behaviour, so as to remove what is loosely described as institutionalised status inequality.1 Individual complaints-based procedures can lead management to review their practices. This possibility has been enhanced by the recently expanded power of the tribunals to make recommendations *I.L.J. 316 that the respondent take action for the purpose of obviating or reducing the adverse effect of unlawful discrimina-

tion not only on the complainant but also on any other person.2 However, research indicates that the positive effect of individual cases is generally short-lived, and can lead to defensive and negative attitudes to change.3 Dissatisfaction with the individual rights and liabilities approach as a transformative tool to achieve equality has led to a search for alternatives over the past five decades. North American models of administrative enforcement were influential in the setting up of the Race Relations Board in 1965, but its work was complaints-based. Reliance was placed on collective selfregulation when racial discrimination in employment was outlawed in second-generation legislation in 1968.4 The main responsibility for enforcement was put in the hands of voluntary bodies of employers and unions in some 40 industries with the Race Relations Board as only a backstop. The expectation that voluntary procedures would stimulate the growth of such procedures proved to be illusory. This is not surprising since these procedures were in many cases operated by the very people who were likely to be supportive of discriminatory practices, and their primary motive was to resist legal intervention which would undermine the tradition of industrial relations voluntarism. The third generation of legislation, establishing the Equal Opportunities Commission (EOC) in 1975, the Commission for Racial Equality (CRE) in 1976 and the Disability Rights Commission (DRC) in 1999, was a major turning point. These bodies were freed from the complaints-based approach so that they could get on with a broader strategy against discrimination and disadvantage. The commissions were largely successful in their promotional tasks of setting and raising standards. The principal measures, apart from general publicity, were codes of practice. It is clear that a significant number of employers were prompted by the commissions' promotional activities and codes to review their practices and to take action that resulted in more opportunities for Black and minority ethnic groups and women and, when the DRC started operating, also for disabled persons. *I.L.J. 317 However, the commissions were less successful in using their powers of command and control. There were powers to conduct two types of investigation. First, general in-

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quiries could be carried out without the commission having any specific belief that there may have been breaches of the legislation. These inquiries could not be directed against a named organisation and could result only in a report and recommendations. The second type of investigation was the belief or accusatory investigation of a named person. The commissions had powers to issue subpoenas and, after a hearing, could issue non-discrimination notices to stop discriminatory practices. In the early years, the CRE believed that it could act as an inspectorate and investigate a named organisation without any prior evidence of unlawful discrimination either because there was general evidence of inequality in the sector or occupation or because it was a leading company that could act as a role model. The CRE carried out a number of important investigations which showed how discrimination operates and how to deal with it.5 However, they encountered judicial hostility, notably from Lord Denning who notoriously compared the CRE's powers with those of the Inquisition.6 A series of cases stopped the CRE from launching an investigation unless it had a reasonable suspicion that there had been unlawful discrimination,7 enabled respondents to challenge the findings of fact on which non-discrimination notices were based,8 and imposed procedural requirements so elaborate and so cumbersome that even Lord Denning was led to concede that investigations were grinding to a halt.9 Not surprisingly, there was a sharp decline in the use of belief and accusatory investigations against named organisations by the CRE, and the EOC made very little use of this procedure. The DRC's powers to conduct formal investigations were framed in a different way, allowing non-accusatory investigations into a named person, and providing for agreements in lieu of enforcement action. The DRC also had power to *I.L.J. 318 require a person who committed an unlawful act to prepare an action plan for the purpose of avoiding repetition or continuation of that act. There were deeper problems than judicial hostility with the command and control design of third-generation legislation. The commissions lacked the resources to detect discrimination and enforce external standards which organisations were obliged to meet. Moreover, the commissions had to rely exclus-

ively on negative duties prohibiting discrimination rather than positive duties to eliminate discrimination, advance equality and foster good relations between groups. The EqAs 2006 and 2010 sought to overcome the weaknesses of existing regulatory enforcement in two ways. First, the 2006 Act created a single Equality and Human Rights Commission (EHRC), covering all protected characteristics and all prohibited grounds, and gave it extensive powers modelled largely on those of the DRC. The EHRC was given a budget of 70 million in its first year, significantly more than the combined allocations of its predecessors. The outcome of a long struggle to establish this body was said to be a statutory body with a powerful mandate, set an inspiring challenge, and equipped with the powers, breadth of functions, independence and internal flexibility of structure to achieve it.10 The second improvement was that the EqA 2010 revised and extended the patchwork of positive duties on public authorities to promote equality in respect of race, gender and disability, into a single public sector equality duty covering all the protected characteristics. There is a general duty on specified public authorities in the exercise of their functions to have due regard to the need to eliminate discrimination, harassment and victimisation, to advance (not simply promote) equality of opportunity and to foster good relations between groups.11 In addition, power was given to the Minister to impose specific duties on listed authorities for the purpose of enabling the better performance of the general duty.12 It was expected that, like the earlier specific public sector duties, there would be a duty to have arrangements to engage with employees, service users and their representatives and other stakeholders. This requirement of consultation and involvement was described in the Labour Government's Discrimination Law Review *I.L.J. 319 consultation paper as one of the key principles which underpin the effective performance of public sector equality duties.13 Although critics did not regard these reforms as going far enough, in particular failing to impose any positive duties to advance equality on the private sector, they were undoubtedly two important steps towards the realisation of what McCrudden described as a model of reflexive regulation,14 or what the Cambridge Review called responsive regulation15 or enforced

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self-regulation.16 However, the Lib-Con Coalition Government is in the process of taking two significant steps backwards from reflexive regulation. The first is a series of measures which will reduce the legal competence to undertake effective strategic enforcement of equality, and to assist victims of unlawful discrimination, harassment and victimisation, and are likely to limit the EHRC's future independence. At the same time, its ability to use effectively even its restricted powers will be compromised by severe cuts in its annual budget. From a budget of 70 million in its first year, the Commission went down to 48.9 million in 2011-12, this will be reduced to 26 million by 2015, a loss of nearly two-thirds of its initial resources and staffing. Although there will be a 37% increase in the Home Office equalities budget to cover some functions taken over from the EHRC, the Commission will be grossly under-resourced. The second backwards step is the removal from the specific duties of any requirement on public authorities to engage with employees and other stakeholders in framing their equality objectives and in achieving those objectives. It is, therefore, necessary to re-open the debate on reflexive regulation, of which engagement is a key element. What are the advantages and possible disadvantages of reflexive regulation of equality? Why is engagement a vital principle in advancing equality of opportunity? And what are the likely consequences of the change in direction? *I.L.J. 320 2. REFLEXIVE REGULATION AND ENGAGEMENT Some theorists attribute failures of social regulation to deliver desired outcomes to the limited role that law can play in changing other social sub-systems. Drawing on systems analysis and by analogy with the biological theory of autopoiesis, it is argued that society is not structured hierarchically with law at the top. One should not expect law to change behaviour by simple command and control. There are multiple sub-systems including the market, the workplace and the administration. Each sub-system operates autonomously to a greater or lesser degree; each has its own language and operates according to its own internal logic. There is no shared language: each subsystem is operationally closed in the sense that it is capable of self-reproduction without direct reference to the outside envir-

onment. At the same time, it is cognitively open to indirect influence. It can adapt to external stimuli reflexively, that is by acts of communication with other sub-systems and by adjusting to the common environment in which they operate. So when the sub-system of the workplace receives a communication from the legal system, this filters through its own internal norms and culture. The outcomes may be significantly different from what is desired by those initiating legal intervention.17 Teubner describes this as a regulatory trilemma: either the targeted sub-system ignores the intervention, or the intervention damages the sub-system's ability to reproduce itself (for example, the juridification of autonomous collective bargaining by legal intervention) or the legal system loses its legitimacy because it is ineffective.18 Teubner's solution is to create a new model of reflexive law which does not seek to impose substantive rules on sub-systems but instead works with the internal dynamics of those systems and co-ordinates them through proceduralisation. A conclusion that has been drawn from this theory is that if legal intervention is to be successful, it must concentrate on improved communication that enables the targeted sub-system to adjust and re-configure itself. Braithwaite, one of the leading advocates of what he calls responsive regulation, explains: *I.L.J. 321 [T]he core idea of responsive regulation (whether by government or other actors who regulate) should be responsive to the motivational postures of the regulated, to their customs, their actual conduct and to structured facts [R]esponsive regulation makes the explanatory claim that legally pluralist deliberative institutions that engage multiple stakeholders are most likely to secure the regulatory purposes of such institutions [It] values flexibility, citizen participation in crafting contextually attuned solutions to problems and parsimony in recourse to coercion. Yet deterrence and incapacitation have vital roles in responsive regulation.19 This kind of regulation involves three interlocking mechanisms. The first is internal scrutiny by the organisation itself to ensure effective self-regulation. The second is the involvement of interest groups (such as managers, employees and service users) who must be informed, consulted and engaged in the process of change. The third is an enforcement agency (such

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as the EHRC) which should provide the back-up role of assistance, building capabilities and ultimately sanctions where voluntary methods fail. These interlocking mechanisms create a triangular relationship among those regulated (eg, employers), others whose interests are affected (eg, workers and consumers) and the enforcement agency as the guardian of the public interest.20 The most distinctive part of responsive [reflexive] regulation is the regulatory pyramid. It is an attempt to solve the puzzle of when to punish and when to persuade.21 At the base of the pyramid is what Braithwaite has called restorative dialogue.22 This involves information, persuasion and voluntary agreement. A crucial element in the design of the enforcement pyramid is to identify and involve the potential participants in the regulatory process. As was said in the Cambridge Review: Modern regulatory theory offers two critical insights The first is that private forms of social control are often far more important in changing behaviour than state law enforcement, and more can be achieved by harnessing the enlightened self-interest of employers and providers than through command and control *I.L.J. 322 regulation. Our case studies of employers show that it is well-recognised in the UK that there is a strong business case for inclusivity and diversity. The second is that the quality of regulation can be improved by bringing into the regulatory process the experience and views of those directly affected. Groups such as trade unions, community organisations and public bodies act as watchdogs, educate and inform others, and help individuals to enforce their rights. These considerations suggest that: regulation should build on the self-interest of business and providers; interest groups should have opportunities to participate in the regulatory process, through information, consultation and engagement.23 As one moves up the regulatory pyramid, increasingly demanding interventions are involved. When persuasion and dialogue fail, progressively more deterrent sanctions are required until there is compliance. The choice is not between voluntarism and legal sanctions. In many cases, voluntarism can work only if

there is the possibility of gradual escalation of sanctions by the regulator. An objection which is sometimes raised against the theory of reflexive regulation is that it either ignores or underestimates the importance of power in securing or avoiding compliance. How can one mitigate the undoubted imbalance between the institutional power of mega-corporations and public bodies and the individuals, work groups and communities affected by their activities? One way is to strengthen the political and legal power of independent regulatory agencies, but that has often failed to work in the past when done on its own, because of judicial hostility, lack of resources and the absence of transformative positive duties to bring about change. Another more promising strategy to oppose corporate and institutional power is to strengthen the countervailing power of individuals, work groups and communities. This may be achieved by legally imposed procedures for engagement. The nature of that engagement will depend on the context. It includes information, consultation and other forms of participation, and, in the labour relations context, collective bargaining. In the sphere of securing fundamental human rights, such as that to equality, engagement is seen primarily as a process of exchange of information, learning about the parties' respective positions, followed by persuasion based on reasoned argument, with a view to reaching agreement on the implementation of the duty. This goes beyond consultation which, as usually interpreted, gives only a passive role to those consulted to respond *I.L.J. 323 to proposals made by the holder of power. Instead engagement in the context of equality law must ensure that certain basic moral and political values are upheld. These include respect for the dignity of vulnerable individuals, the elimination of discrimination, the advancement of equality of opportunity and the need to foster good relations between different groups. This approach to engagement is consistent with a modern understanding of deliberative democracy. Fredman defines this as a situation in which citizens share a commitment to a resolution of problems of collective choice through public reasoning, and says that moving from a bargaining model to a deliberative model therefore requires a substitution of interest-governed action by value-oriented

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action.24 One may conclude that the disadvantage of the reflexive regulation model is that it may simply serve to legitimate or rubberstamp the exercise of corporate and institutional power unless individuals and groups affected by their actions have the legal power to compel engagement, and the enforcement agency has the power to ensure that agreements uphold the values of the legislation and, where necessary, to impose deterrent sanctions. 3. UNDERMINING THE ENFORCEMENT PYRAMID The EqA 2006 and EqA 2010 made significant improvements to the enforcement pyramid that had been built up under previous legislation, but there were still some important gaps. In March 2011, the Coalition Government published proposals which threaten to undermine the pyramid at its base, without filling any of the gaps at higher levels.25 The consultation period closed on 15 June 2011 and, at the time of writing, the Government's response is awaited. This analysis is based on the consultation paper, but there may be changes when amending legislation is enacted. It is possible to distinguish seven levels in the equality enforcement pyramid.26 *I.L.J. 324 A. Level One--Information and Persuasion The EqA 2006 made extensive provision for this. First section 3 of the EqA 2006 gave the EHRC the general duty to encourage and support a society based on freedom from prejudice and discrimination, individual human rights, respect for the dignity and worth of each individual, equal opportunity to participate in society and mutual respect between groups based on understanding and valuing of diversity and shared respect of equality and human rights. The Government proposes to repeal this section. The consultation paper argues that this has no specific legal function and creates unrealistic expectations--both positive and negative--about what the EHRC, as an equality regulator can achieve.27 This overlooks the functions of section 3 in providing a link between the aims of promoting equality, human rights and good relations between groups. Its repeal will deprive those applying the law of interpretative principles. The Labour Government declined to include a purposes clause

in the EqA 2010.28 In the absence of such a clause, judges and others applying the two pieces of legislation can resolve ambiguities and fill gaps by having regard to the purposes in section 3 of EqA 2006.29 The repeal of section 3 will leave the EqA rudderless. Second, section 8 of the EqA set out seven ways in which the EHRC, by exercising its powers, can promote equality and diversity. The Coalition Government's proposals would, in effect, retain only three of these in more limited form--encouraging good practice, promoting awareness and understanding of rights under equality enactments and enforcing them--but would remove the broadly stated functions of promoting understanding of the importance of equality and diversity, promoting equality of opportunity and working towards the elimination of unlawful discrimination and harassment.30 In their place would be the limited functions of monitoring compliance and holding public bodies to account, intervening to address non-compliance, maintaining a robust evidence base, and helping Government to evaluate the effectiveness of the EqA 2010. These proposals coupled with the repeal of section 3 EqA, in effect change the role of the EHRC from that of a promoter of societal change to the much more *I.L.J. 325 restricted one of law enforcer. The experience of the legacy commissions, which successfully worked with organisations in order to achieve change, was that it was necessary to combine general promotional activities with enforcement--these functions are mutually dependent. The EHRC will apparently no longer be able to deal with issues which go beyond enforcement but are important to the achievement of equality of opportunity, such as flexible working, parental leave and improved representation of women, ethnic minorities and disabled persons in public life. Nor will the EHRC be able to influence other laws (such as those on taxation and social welfare) which have an impact on equality of opportunity.31 The EHRC will also lose its duty to promote good relations between groups (the communities duty).32 This duty had its origins in earlier race relations legislation which gave the CRE the duty to promote good relations between persons of different racial groups. It was used by the CRE as the basis for campaigns such as Kick Racism out of Football, for challenging

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anti-semitism and Islamaphobia, and for promoting good relations in elections. This duty was expanded in the EqA 2006 to cover relations within and between other protected groups.33 The EHRC has used this power, for example, to undertake research on the impact of counter-terrorism on Muslim communities, to produce reports on Gypsy and Traveller communities and to help disabled and trans people resist hate crimes. The public sector duty to promote good relations is to remain, but the EHRC will no longer be able to work for good relations between groups in areas such as trade unions, the media, sporting activities and community organisations. The proposals draw a curious distinction between human rights, in respect of which the EHRC will retain broad promotional functions,34 and equality where it will lose those functions. Not only is this distinction unsustainable as a matter of international law since international and European human rights conventions all treat equality as a fundamental human right, but the removal of broader promotional duties appears to conflict with the EU Equality directives that require Member States to designate a national body *I.L.J. 326 or bodies for the promotion, analysis and support of equal treatment.35 From the standpoint of reflexive regulation, the amendments will severely undermine the EHRC's ability to use the first foundational level of the enforcement pyramid. B. Level Two--Internal Scrutiny Positive legal duties on organisations are necessary for ensuring that internal scrutiny takes place. The EqA 2010 imposed the duty to have due regard to the need to advance equality of opportunity and to eliminate discrimination and harassment only in the public sector.36 The specific public sector equality duties required the authority's race equality scheme to state its arrangements for consulting on the likely impact of proposed policies on the promotion of race equality37 ; those relating to gender required the authority to state the actions it had taken or intended to take to consult relevant employees, service users and others (including trade unions)38 and those in respect of disability went furthest, requiring the authority to involve in the development of an equality scheme disabled persons who appeared to the authority to have an interest in the way it carries out its functions.39

The EqA 2010 confers a power to make regulations imposing specific duties on listed public bodies to enable the better performance of the new single general duty.40 Draft specific duties regulations published in January 2011, following consultation, required the listed public bodies to publish details of the engagement they had undertaken when determining their policies. In March 2011, however, there was a volte face. New draft regulations were published stripping out all the process requirements, including the publication of details relating to engagement.41 The requirements are now *I.L.J. 327 limited to publication by the public body of equality objectives every four years and publication once a year (starting no later than 31 January 2012) of information to demonstrate its compliance with the general duty. This must include information relating to its employees and others affected by its policies and practices. These regulations cover only England. One of the consequences of devolved powers in respect of the duties is that the Welsh Assembly has approved separate regulations which are modelled on the first English draft, including the engagement requirement,42 and the Scottish Parliament is still considering the matter. A cross-border authority may find itself operating under three separate regimes in Great Britain, and another in Northern Ireland. The justification given by the Government for this turnaround in England is its commitment to reduce burdens and bureaucracy on public bodies, moving away from a process-driven approach to a focus on transparency, in order to free up public bodies to do what is appropriate in their circumstances, to take responsibility for their own performance, and to be held to account by the public.43 There certainly was a widely held perception that the specific duties under race, gender and disability legislation had led some public bodies to focus on paper exercises and a tick-box approach as to whether they had followed the right processes, rather than on whether those processes actually delivered equality improvements.44 The issue is whether transparency as to objectives and outcomes alone will result in adequate internal scrutiny and voluntary action. There are already reports that some public bodies, in order to make costs savings, are abandoning monitoring and impact assessments and are not consulting interested persons, trade

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unions and equality representatives, or involving disabled persons. C. Level Three--Support for Individuals and the Provision of Conciliation Individual actions complement and should work hand-in-hand with enforcement by the EHRC. The EqA 2006 allowed the EHRC to provide a range of support for individuals and nongovernmental equality organisations. The first is a helpline which gives information and general *I.L.J. 328 advice. The Coalition Government has decided to stop funding this helpline but proposes to replace it with a generalist advice service. The details are at present obscure but is doubtful whether a generalist service can provide the same expert help in discrimination cases as the EHRC. Second, the EHRC has a legal grants programme45 that provides awards to voluntary organisations, such as race equality councils, to educate individuals about their rights. It also makes grants to advice organisations, such as citizens' advice bureaux and law centres, to provide legal advice and representation,46 and training for advisers, caseworkers and lawyers. Government support for this grants programme is to cease. A survey by the Discrimination Law Association of providers indicated that without such grants, they would not be able to sustain their services and some might have to close down completely.47 Civil legal aid is not available for representation in employment tribunals, and is being removed in respect of advice. No-win no-fee conditional fee agreements and damages-based agreements with lawyers are feasible only where there are multiple claimants or in those rare individual cases where there is the reasonable probability of a high compensation award.48 The EHRC will no longer be able to commission a conciliation service in non-employment cases,49 a surprising proposal in view of the Ministry of Justice's commitment to promote conciliation and mediation as a means of reducing the burden on courts and tribunals and reducing expenditure.50 All these changes mean that, apart from a very limited number of strategic test cases and judicial review proceedings, which the EHRC decides to support or in which it intervenes, individual enforcement and conciliation are likely in future to play an even more limited role than previously in changing organisa-

tions. D. Level Four--Inquiry and Investigation Where information and persuasion and voluntary action fail, the EHRC has extensive powers, modelled on those of the DRC, to conduct an *I.L.J. 329 inquiry.51 Inquiries have been conducted by the EHRC into issues such as disability-related harassment, sex discrimination in the finance sector, race discrimination in the construction industry and employment and recruitment in meat and poultry processing. These have stimulated change. Where the Commission suspects that a named person has committed an unlawful act, it may conduct a formal investigation.52 The Coalition Government is not proposing any changes to these powers. What is missing in these provisions is a power for the EHRC to conduct equality audits in the public and private sectors, as the Irish Equality Authority can do, even in the absence of specific evidence of discrimination. E. Level Five--Unlawful Act Notices and Compliance Notices Following an investigation, the EHRC may issue an unlawful act notice requiring the respondent to prepare an action plan for the purpose of avoiding repetition or continuation of the unlawful act.53 There are detailed provisions for an appeal to a court or tribunal, and for the Commission to apply to a county court or the sheriff for an order requiring the person to give the Commission a first draft or revised plan, or during a five-year period to act in accordance with the plan.54 In the case of the public sector equality duties, the EHRC can assess compliance,55 issue a compliance notice and apply to court for an order requiring the authority to comply.56 The Coalition Government is not proposing any changes. F. Level Six--Agreements in Lieu of Enforcement The EHRC can enter into a formal agreement with a person whom it believes has committed an unlawful act. This requires specified action, including the preparation of a plan, in return for the Commission undertaking not to proceed against the person in respect of the unlawful act in question. An example is the EHRC's investigation of sexual harassment in Royal Mail which led to Royal Mail putting resources and effort into implementing *I.L.J. 330 an action plan agreed with the Commis-

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sion and reporting regularly to the Commission. These agreements enable the EHRC to work closely with the organisation in question, leading in some cases to those organisations becoming champions of best practice in equality.57 Affirmative action agreements of this kind have proved to be highly successful in Northern Ireland.58 G. Level Seven--Sanctions A person not complying with a court order (above) may be subject to sanctions for contempt of court, and the EHRC may apply for an injunction (interdict in Scotland) to prevent a person committing an unlawful act.59 The EqA 2010 did not implement the proposal by the Cambridge Review for legislation that would exclude contractors from approved lists or have their contracts terminated if they were found to have committed gross misconduct, including persistent discrimination.60 The general public sector equality duty applies to procurement by public bodies, but no specific duties have been prescribed. The EHRC is preparing non-statutory guidance, building on guidance issued by its predecessor commissions. The Coalition Government is not proposing any changes. 4. DIS-ENGAGEMENT A missing element in the EqA 2010 is any requirement for engagement with interest groups in advancing equality and eliminating discrimination and harassment. The general public sector equality duty is silent on the question of engagement with any specific class of representatives, such as recognised trade unions or equality representatives. There are many thousands of *I.L.J. 331 equality representatives appointed and supported by trade unions who give advice and help members on equality issues in the workplace. Their effectiveness depends on the willingness of employers to recognise and consult with them. The TUC estimated in 2010 that only 36% of equality representatives have an employer who automatically consults with them frequently, only 26% of employers negotiate with equality representatives and 22% of employers never involve the representatives.61 There is no legal duty to consult these representatives. The Labour Government even rejected an amendment promoted by the TUC, to allow these representatives paid time off work to carry out their functions and receive

training.62 This contrasts with health and safety regulations which require employers to consult with safety representatives, who are elected by employees, and to ensure they receive training and to give them time off to perform their functions.63 As we have seen, the Coalition Government at first proposed to include among the specific public sector duties a requirement to publish details of the engagement that the public body had undertaken with people whom they considered to have an interest in furthering the aims of the general equality duty. The abandonment of this requirement means that public bodies will be expected to comply voluntarily with guidance on engagement issued by the EHRC. Such guidance was issued in March 2011,64 before the shift in Government policy and is being revised. At present, the guidance stresses that engagement can be particularly effective if it is built into the whole decisionmaking process, that engagement should be undertaken before decisions are finalised65 and that there should be careful planning of engagement and flexibility in its use. It is said that the body should engage with those who have an interest in how they carry out their work generally, or in a particular policy. This may include staff, staff equality groups, trade unions, equality organisations, service users and the wider community.66 Among the examples given are review groups, representative groups, *I.L.J. 332 online engagement, citizens' juries and even conversation cafes run by a mediator. The EHRC points out that the success of engagement depends on several factors including genuine commitment by all participants, engagement proportionate to the size and resources of the organisation and the integration of engagement procedures and outcomes into the decision-making process from an early stage, in an accessible and ongoing way.67 The EHRC's guidance does not give rise to any enforceable private law rights. However, one may expect that the EHRC will take account of a failure to engage, in accordance with its guidance, when making an assessment of compliance with the public sector duty. It is less certain that, in the absence of a specific duty to engage, the courts will treat a failure to engage in itself as a ground for judicial review, but if such a failure is coupled with unsatisfactory outcomes, the court may conclude that the public body has not had due regard to the general

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duty.68 The weakness of this is that it works only retrospectively when the evidence of outcomes for a particular annual cycle is published. The public sector duty places too heavy a reliance on voluntary means to achieve engagement. There is no specific duty to do so, only unenforceable non-statutory guidelines. The scope for EHRC enforcement or judicial review on grounds that there was inadequate engagement is extremely limited. Although focus on outcomes rather than bureaucratic processes may be desirable, there is not enough carrot or stick to make engagement with interest groups an essential feature of the public sector equality duty. In the absence of engagement, the outcomes are the result of a unilateral process rather than the triangular one that is the essence of reflexive engagement. This reduces the likelihood that reflexive regulation will be successful in Britain. 5. CONCLUSIONS What does this all teach us about reflexive regulation in the context of equality? The first lesson is that the independence of the regulatory agency is essential, so as to ensure relative insulation from political and business pressures. The independence of the enforcement agency, like the independence of the judiciary, helps to ensure a pluralistic democracy in *I.L.J. 333 which no one power can dominate the others.69 The UN Paris principles set out the desirable status and functions of human rights agencies.70 These include accountability to the directly elected legislature rather than to the executive. The EHRC is an arms length non-departmental public body (NDPB) whose commissioners are appointed by the Secretary of State. The absence of direct accountability to Parliament, coupled with the reality of ministerial control over resources and appointments, has made it possible for the executive to use the need to cut public expenditure as the pretext for disproportionately large budget reductions, and to use the pretext of reducing bureaucracy and red tape in order to take away many of the EHRC's vital promotional functions. Neither the Labour nor the Coalition governments have taken heed of the Joint Committee on Human Rights' recommendations in 2003, that the appointment of commissioners and the chief executive should be subject to parliamentary ratification, that the Commission

should formally report to and be held to account by one or more select committees and its budget should be set by Parliament.71 A further threat to the EHRC's independence is to be found in the Public Bodies Bill introduced in 2010, which would make it possible for a Minister to modify the constitutional and funding arrangements under which the Commission operates and to amend or transfer its functions. This would enable governments to undermine the EHRC's role and would violate the Paris principles.72 The Commission should be protected by Parliament from the ideologically driven measures of particular governments and ministers. The Government is also proposing a number of additional statutory obligations on the EHRC, which go beyond requirements for financial probity and accountability imposed on other NDPBs.73 The strategic mistakes made by the previous Government and by the EHRC in the process of setting up and transition from previous commissions, as well as the EHRC's management and accounting failures, have been used as the justification for this. Those mistakes and failures are regrettable and show that although independence is necessary, it is not the only condition for *I.L.J. 334 effectiveness and credibility. But they do not justify singling out the EHRC for special treatment or greater governmental control. A second lesson is that the primary role of the enforcement agency should be to develop the capabilities of those who are regulated. This includes providing them with space for deliberation. There is rich experience in Britain and Northern Ireland from the way the legacy commissions worked with organisations to bring about change.74 The EHRC was given extended powers to inform and persuade, to support individuals, to engage with stakeholders in setting objectives and measuring progress, to reach agreements in lieu of compliance and if necessary issue unlawful act notices and compliance notices, with sanctions as the last resort. Those powers, especially at the foundational levels of the enforcement pyramid, are now seriously threatened. The EHRC will need inspired and determined leadership, if it is to use its remaining powers and resources effectively. The third lesson is that deterrent sanctions remain important. The general approach of British governments to the private

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sector has been that only if voluntary methods do not work, will legal enforcement be considered. The theory of reflexive regulation, and five decades of British experience with voluntary race relations procedures and failed equal pay legislation, show that this evolutionary approach is profoundly mistaken.75 It remains as important as ever to continue to campaign for employment equity and pay audits, and deterrent last resort sanctions including contract compliance. The final lesson is that grand theories such as that of reflexive regulation may have little impact on the actual development of legal enforcement. Academic commentators saw signs of a model of reflexive regulation in the EqA 2006 and 2010. We saw then through a mirror, dimly. Now we can see that politicians had not grasped the essentials of this form of regulation or, if they had, chose to ignore them. Reflexive regulation can mean all things to all people. No one can decide in advance what use different political groups will make of it. Teubner points out, in relation to autopoiesis, that in this theory for the neo-conservative there is the principle of subsidiarity; for the neo-liberal there is self-regulation through the market; for the neosocialist there is the autonomy of democratised social subspheres.76 Those *I.L.J. 335 ideological differences should not deflect law enforcers from using all the means at their disposal to ensure that corporations and public authorities regulate themselves effectively in order to reduce under-representation, exclusion and institutional barriers to equal opportunities. University of Cambridge, email: bgh1000@cam.ac.uk I.L.J. 2011, 40(4), 315-335 ____________________________________________________ 1. This is wider than direct and indirect discrimination, and includes all aspects of an occupational culture that are transmitted and sustained in formal and informal ways through routines and everyday practices that disadvantage vulnerable groups: see W. MacPherson, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William MacPherson of Cluny (London: Stationery Office, 1999), at 22-3, para 6.17. 2.

Equality Act (EqA) 2010, s 124(3). 3. M. Coussey, Findings from Employer Case Studies in B. Hepple, M. Coussey and T. Choudhury (eds), Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Oxford: Hart Publishing, 2005), Appendix I (the Cambridge Review). 4. B. Hepple, Race, Jobs and the Law in Britain, 2nd edn (Harmondsworth: Penguin Books, 1970) at 175-201. 5. M. Coussey, The Effectiveness of Strategic Enforcement in the Race Relations Act 1976 in B. Hepple and E. Szyszczak (eds), Discrimination: The Limits of Law (London: Mansell, 1992); C. McCrudden et al, Racial Justice at Work: The Enforcement of the Race Relations Act 1976 in Employment (London: Policy Studies Institute, 1991). 6. Social Science Research Council v Nass [1979] I QB 144, CA, at 172. 7. R v Commission for Racial Equality, ex parte Prestige Group Ltd [1984] ICR 473, HL; Hillingdon London Borough Council v Commission for Racial Equality [1982] AC 779. 8. R v Commission for Racial Equality, ex parte Amari Plastics [1982] QB 1194, CA. 9. [1982] QB 1194 at 1203. 10. S. Spencer, Equality and Human Rights Commission: A Decade in the Making (2008) 79 The Political Quarterly 6-16 at 15. 11. EqA 2010, s 149. See the article by Sandra Fredman in this issue at pp. 405-27, and B. Hepple, Equality: The New Legal Framework (Oxford: Hart Publishing, 2011), 134-43. 12.

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EqA 2010, s 153. 13. Department for Communities and Local Government, Discrimination Law Review: A Framework for Fairness. Proposals for a Single Equality Bill for Great Britain (London : DCLG, 2007), at 92, para 5.44. 14. C. McCrudden, Equality Legislation and Reflexive Regulation: A Response to the Discrimination Law Review's Consultative Paper (2007) 36 ILJ 255-66; see too, C. O'Cinneide The Commission for Equality and Human Rights: a new institution for new and uncertain times (2007) 36 ILJ 141-62. 15. The term favoured by I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford: Oxford University Press, 1992). 16. Cambridge Review, above n.3, at 56, para 3.2; Equality, above n.11, at 127-8. 17. G. Teubner, Law as an Autopoietic System, translated by A. Bankowska and R. Adler, ed. by Z. Bankowski (Oxford: Blackwell, 1993) at 64-99; N. Luhmann, translated by K. A. Ziegert, F. Kastner et al, Law as a Social System (Oxford: Oxford University Press, 2004) at 80. 18. G. Teubner, Juridification: Concepts, Aspects, Limits, Solutions in G. Teubner (ed), Juridification of Social Spheres: A Comparative Analysis in the Areas of Labour, Corporate, Antitrust and Social Welfare Law (Berlin: de Gruyter, 1987) 3-48. 19. J. Braithwaite, Regulatory Capitalism: How It Works, Ideas for Making it Better (Cheltenham: Edward Elgar, 2008) at 163. 20. Equality, above n.11 at 126. 21. J. Braithwaite, Restorative Justice and Responsive Regulation

(Oxford: Oxford University Press, 2002) at 30. An example of a regulatory pyramid will be found in Responsive Regulation, above n.15. This was developed in the context of equality in the Cambridge Review, above n.3, at 56-9. 22. Restorative Justice and Responsive Regulation, above n.21, at 30. 23. Cambridge Review, above n.3, at 57-8, para 3.5. 24. S. Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008), at 356. 25. Government Equalities Office, Building a Fairer Britain: Reform of the Equality and Human Rights Commission, March 2011. 26. Compare the seven ideal levels suggested in the Cambridge Review, above n.3, at 58, para 3.6. 27. Building a Fairer Britain, above n.25, at 11-12, para.1.8. The Scottish Commission for Human Rights Act 2006, s 2(1) has a general duty clause. 28. Equality, above n.11, at 12-13. 29. Cambridge Review, above n.31, at 34-5, para 2.41. 30. Building a Fairer Britain, above n.25, at 12-14, para 1.9. 31. Compare EqA 2006, s 11(2)(d) at present allows the EHRC to advise central and devolved government on the likely effect of a change in the law. 32. Building a Fairer Britain, above n.25, at 14-15, paras 1.15-18. 33.

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EqA 2006, s 10. 34. EqA 2006, s 9; Building a Fairer Britain, above n.25, at 15-16, paras 1.13-14. The EHRC has been designated as the monitoring body under the Convention on the Rights of Persons with Disabilities to promote, protect and monitor implementation of the present Convention. 35. Recast Equal Treatment Directive 2006/54/EC, Art 20; Race Directive 2000/43/EC, Art 13; Gender Goods and Services Directive 2004/113/EC, Art 12(1). 36. See the article by Sandra Fredman in this issue p. 405-27. 37. The Race Relations Act 1976 (Statutory Duties) Order 2001, No. 2548, Art 2(b)(i), and The Race Relations Act (Statutory Duties) Order 2003 No. 3006, Art 2(b)(i). 38. The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 No. 2930, Art 2(6)(d). 39. The Disability Discrimination (Public Authorities) (Statutory Duties Regulations 2005 No. 2966, reg 2(2)), and information on this had to be included in the scheme: Art 2(3)(a). 40. EqA 2010, s 153. 41. The EqA 2010 (Specific Duties) Regulations 2011 No. 2260, which is to be reviewed after two years. 42. The EqA 2010 (Statutory Duties) (Wales) Regulations 2011 No. 1064 (W 155). 43. Government Equalities Office, Equality Act 2010: The Public Sector Equality Duty. Reducing Bureaucracy, Policy Review Paper (March 2010) para 3; Baroness Verma HL Deb vol 730, cols 122-5 (6 September 2011).

44. See Lord Ouseley Hansard HL, Vol 717, col 1399 (2 March 2010); and generally, Equality, above n.11, at 139. 45. EqA 2006, s 17. 46. EqA 2006, ss 28, 29. 47. Discrimination Law Association, Response to the EHRC Reform Consultation (June 2011), at 19-20. 48. Equality, above n.11, at 163-6. 49. For conciliation and mediation in employment cases, see Equality, above n.11, at 168-70. 50. In 2010, the EHRC completed 59 mediation cases in non-employment cases with over 86% settled. 51. EqA 2006, s 16; Equality, above n.11, at 151. 52. EqA 2006, s 20; Equality, above n.11, at 151-2. 53. EqA 2006, s 21. 54. Ibid., s 22. 55. Ibid., s 31. 56. Ibid., s 32. 57. EHRC, Enforcement: website: http://www.equalityhumanrights,com/legal-and-policy/enforcement. The website also provides a number of case studies. 58.

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A. Heath, P. Clifford, H. Hamill, C. McCrudden and R. Muttarak, The Enforcement of Fair Employment Law in Northern Ireland. The Effects of Commission Agreements, MacBride Agreements and Fair Employment Cases (unpublished paper, 2009, and summary in (2009) 4 Equal Rights Review 7-14). 59. EqA 2006, s 24, 60. Cambridge Review, above n.3, at 79-85, paras 3.61-77; Equality, above n.11, at 136-7, and generally on the advantages and disadvantages of procurement linkages with equality, see C. McCrudden, Buying Social Justice (Oxford: Oxford University Press, 2007), at 114-30. 61. These statistics were quoted from a TUC briefing by Baroness Gibson of Market Rason, Hansard HL Deb, Vol 716, col 984 (27 January 2010). 62. Hansard HL Deb, Vol 716, col 986 (Baroness Thornton). 63. Safety Committees and Safety Committee Regulations 1977, S.I. No. 500; and Health and Safety Commission Codes of Practice on Safety Representatives and Safety Committees (1978) and the Time off for the Training of Safety Representatives (1978). 64. EHRC, Public Sector Equality Duty. Engagement and the Equality Duty: A Guide for Public Authorities (London, 2011). 65. Ibid., at 13-14. 66. Ibid., at 10. 67. Ibid., at 21-2 See Lord Low of Dalston HL Deb vol 730, col 130 (6 September 2011). 68. See Sandra Fredman's article in this issue (The Public Sector

Equality Duty (2011) 40 ILJ 405, below); and Equality, above n.11, at 137-8. 69. M. Minogue and L. Cario (eds), Regulatory Governance in Developing Countries (Cheltenham: Edward Elgar, 2006), at 10. 70. Principles Relating to the Status of National Institutions. United Nation General Assembly Resolution 48/134, December 1993. 71. Joint Committee on Human Rights. Sixth Report, session 200203, paras 223, 225, 230. 72. Joint Committee on Human Rights. Session 2010-11, Seventh Report, paras 1.17-1.19; HC Deb 2 July 2011, col 212 (Tessa Jowell MP). 73. Building a Fairer Britain, above n.25, at 25-7, paras 3.1-10. 74. See e.g., Strategic Enforcement, above n.5. 75. Cambridge Review, above n.3, at 57, para 3.4. 76. Law as an Autopoietic System, above n.17 at 64. 2012 Oxford University Press