Legal protection from discrimination was expanded to include sexual orientation and religion or belief in December 2003. This is set to increase to six , with anti-age discrimination due for implementation in 2006. These enhancements to equalities legislation are of course welcome. How effective though can they be without a strong commitment by government to both enforcement and promotion of these rights? Moreover, will the Government use the opportunity afforded by the establishment of the new commission, at the same time that a draft bill on civil claims and the tribunal system is considered, to look at overhauling the system of public funding for such cases?

A strong argument for the development of a single equalities and human rights commission is that it will lead to a “one stop shop” for promotion and guidance on combating the six forms of discrimination. However, legislation around equalities is not unified and different degrees of protection apply depending on the type of discrimination.

If the CEHR comes about the creation of a harmonised legal system of protection from discrimination would have to be an early priority. Not to do so would lead to the newly created body institutionalising a hierarchy of rights depending on the type of discrimination. This would make nonsense of the strongest argument for the unified body. A person’s identity can potentially be defined by a combination of up to all six protected groups. Discrimination does not necessarily happen in discrete legally quantifiable single packages, a unified body would therefore reflect this social reality.

The proposed CEHR’s work on Law Enforcement would be mainly strategic, its support for cases confined to sifting for test cases, reflecting broadly what currently happens with the existing commissions.

Perhaps not surprisingly the proposed "strategic approach" for the CEHR has been welcomed by the Confederation of British Industry , which of late seems to be returning to a more strident line in anti union rhetoric. The lack of services for "ordinary cases" fails to recognise the imbalance of power between employers and employees, especially across the private sector, with the overall halving of union membership in the last twenty years and the remaining union membership being increasingly concentrated in the public services.

Human Rights

Lord Irvine in the foreword to “Modernising Justice” outlines a position of principle, “People need to have ways to uphold their rights and defend their interests in their dealings with others, including employers, retailers, service providers and the State. It is not enough for people to have rights; they must be confident they can enforce those rights if need be. This was the purpose behind the Human Rights Act 1998, which enables citizens to enforce their fundamental rights through British courts.”

LCF believes a cornerstone of the Government’s agenda for Equalities and Human Rights should be a national network of Law Centres both to provide the cutting edge casework for the legislation where litigation is necessary, but also to promote these rights at a community level. Law Centres are uniquely equipped for this role with their dual approach to legal issues of expert casework and a strategic or “holistic” services.

The Human Rights Act was a significant advance. We certainly do not want to return to the situation in which British Citizens could not enforce the Convention directly, but had to go off to the European Court of Human Rights to do so. We must all be vigilant in repelling the uninformed attacks that link the Act to the so called “compensation culture”.

The Human Rights Act was used successfully to challenge the insidious section 55, which had sought to take away all state support to asylum seekers, effectively abandoning them on the streets. Such a cases are relatively few, prior to this year there had only been ten occasions in which UK law was declared incompatible with the convention. So there is no “compensation culture” in human rights litigation. Moreover, the Government’s Better Regulation Task Force recently trashed the notion of a “compensation culture” as a “myth”, pointing to a fall in accident claims last year of 9.5% .

This particular myth is persistent though and could be used as a political smokescreen to replace legal rights enforceable in tribunals and courts. Alternative Dispute Resolutions, Ombudsman schemes and complaints systems have a place in giving redress to people Such schemes though, should run alongside the legal system and not been seen as a replacement for it.

Equality, Human Rights and the Tribunal System

The Government should ideally give a commitment to extend legal aid to tribunals, as this is where most discrimination and human rights cases are brought. There is a strong public interest for legal aid in discrimination cases. As a first step the Government could at least bring England and Wales into line with Scotland, where the "Assistance by Way of Representation" or ABWOR legal aid scheme funds representation in complex Employment Tribunal cases.

In Scotland ABWOR is paid if:

“The case is arguable… it is reasonable in the circumstances” and “the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.”

The last criteria is the main one and considers such factors as if the other side are represented, the numbers of witnesses involved and the complexity of legal argument. Up to £800 per day is paid to the representative under the provision.

A Law Centre in Scotland specialising in race discrimination, the Ethnic Minorities Law Centre, funds around a handful of cases each year in this way. The ADWOR system for complex tribunal cases for the whole of the UK merits consideration as the numbers of cases would not necessarily be high, but it would represent a significant enhancement of people’s ability to enforce their rights where this is necessary.

Without a meaningful system of redress for ordinary people, which should include access to expert representation in all discrimination cases, these rights will fail to become embedded in the popular consciousness. This risks them being seen as peripheral to peoples’ everyday lives leaving the rights agenda vulnerable to attack from critics who would seek to repeal these rights.

Currently, a person’s ability to pursue a discrimination case is contingent on where they live and the availability of charitable assistance from agencies like Law Centres and the Bar Council’s Free Representation Unit. Discrimination lawyers in Law Centres are generally dependent on local authority, lottery or other funding to pay for the representation of clients in discrimination cases. Properly funded state support for such cases would alleviate this situation.

A final thought. Human rights and equalities in the UK are viewed through the prism of the European Convention and the Treaty of Rome. Perhaps the UK should also look beyond these supranational agreements to international ones to advance human rights and equalities in the UK? The UN Covenant on Economic, Social and Cultural Rights which enshrines social rights such as the right to housing and the “continuous improvement in living conditions” could be used as an instrument to reassert a rights based approach to issues of poverty and social exclusion . This though would depend on the politicians accepting that the courts could be the arbiters in matters of social and economic policy that impinge on people’s human rights.