Trevor Phillips’ speech to joint conference of Employment Lawyers’ Association, Industrial Law Society, Discrimination Law Association and Employment Law Bar Association

Thank you, Lord Justice Sedley, for your generous introduction.

I should start by warning my distinguished audience that I am, I suppose, a professional in equalities but I am a journalist by trade. I am not a lawyer and this is a great opportunity for me - a room full of lawyers ready to listen to a non-lawyer. I am not an expert in all of the issues that you deal with day to day but I am tasked with the job of setting the framework within which you work in terms of equality and human rights. That framework has never been more important.

We have taken to saying that there are two great challenges facing the world today - how to live with the planet, and how to live with each other. Historians of the future will look back upon this time as one of dramatic social and demographic change. There are real, objective transformations taking place on a scale not seen since the industrial revolution. Just as then, the workplace stands at the frontline of these changes.

We are facing a population with greater number of older people than ever before. There are 9.4m people over the age of 65 now – there will be 12.4m by 2021. By 2050 the number of people aged 80+ will double. By 2026 the demand for informal care will nearly double. Women who thought that 50 was the year they got rid of the kids and started to live the lives that they choose, are now likely to find out that they will spend the middle third of their lives caring for their parents, who may be disabled.

Families overall are changing. There are more lone parents; 8% of households were headed by a lone parent in 1972. In 2005 the figure had risen to 24%. There are also more stepfamilies. With the introduction of civil partnerships for gays and lesbians, family life will continue to move beyond the traditional. We need to find ways to help children prosper in these environments.

More of us will define ourselves as disabled over the coming years: the fastest growth is among children under 16; by 2029 the numbers could rise from 700,000+ to 1.25m. A large part of the reason for this growth is the breaking down of taboos against disclosure of mental health problems, along with better diagnosis of the conditions.

Ethnic minorities are expected to grow as a proportion of the British population from 9% now to 11% by the end of the next decade. But that growth will be different to that of past decades. We will have more different kinds of people – in 1991 nine census categories seemed excessive to some; now even the 17 categories used in 2001 look pretty crude when you think that a single category covers the Leicester born sons of Somali herdsmen and Ghanaian barristers, another Polish electricians and Greek waiters.

And people are migrating in and out faster. 30 million people come to Britain each year and 227 million pass through our airports. Migrants aren’t only settling in the big cities any more; mid-size towns in middle England are by turns bemused and bewildered by the appearance of thousands of foreigners almost all of whom are working, by the way, contrary to the myth about asylum seeking scroungers.

This changing demographic landscape does not just provide the backdrop for inequalities, disadvantage and exclusion in society. It precipitates them. New patterns of exclusion and segregation reflect a society struggling to come to terms with its own diversity. That is why CEHR Commissioners have expressed a vision for our society – which is a Nation at ease with its diversity. But the first condition of being at ease with our diversity is equality. Discrimination still exists. Employment, education and skills gaps widen as policymakers attempt to find formulas that meets the full scale of our needs.

The Equalities Review, which I chaired, demonstrated that some kinds of inequality remain at intolerable levels. Employment inequalities are some of the worst.

At the current rate it could take until 2085 to close the pay gap between men and women; on current trends the employment penalty facing disabled people may never be eliminated. Pregnant women and working mothers face some of the most acute discrimination in the workplace today. A huge new area of inequality is experienced in the daily grind of those who provide voluntary care to the sick and elderly, without any support and whilst juggling paid employment commitments.

Public policy faces a huge dilemma in managing the shifting sands of diversity. But happily we do have some valuable tools at our disposal.

Legislation gives policymakers the teeth to effect change. The 2006 Equalities Act created in the Commission for Equality and Human Rights a public body that will be the largest of its kind in the world. It will be larger and broader in scope than many government departments. It will also have greater independence from the government of the day than any of the three existing equality commissions have enjoyed.

The CEHR will be a completely new organisation, which will be more than the sum of its parts. To borrow an analogy from CEHR commissioner Ziauddin Sardar, the existing single mandate equality commissions are like rivercraft, with clearly defined courses, driven by strong currents – but confined within strict boundaries, and very rarely coming into contact with any other stream. To extend the metaphor to breaking point, the integrated mandate of the CEHR makes it an ocean going liner, no longer confined by the banks of a river, and able to set a course on its own.

I am sure that there will be no shortage of interested and engaged spectators watching how the CEHR manages its integrated mandate. We will face some challenges. How do we reconcile apparently conflicting interests between categories of people? How should we ensure that we have both specificity of expertise and advocacy for what we call in the old parlance the “strands”, that is to say the six protected groups?

On the other hand, the new opportunities presented by the CEHR may make these questions irrelevant. For example, for those worried about the lack of focus that could affect the new Commission, think about it this way: perhaps this new craft will be liberated to focus on persistent inequalities as they actually exist, rather than try to make the inequalities fit pre-existing categories.

Perhaps for the first time we can separate the issue of inequality from the interests of its advocates and we can address both instead of privileging the latter over the former. What I mean by this example is that instead of considering the interests of women as a group, we are able to address the issue of the disproportionate disadvantage faced in the labour market by women with children. Instead of worrying about the “intersection” of race and disability we can seek remedies to the particular and specific problem of black men in the mental health system; or instead of struggling with the complexities of a notional hierarchy between race and faith, we can focus on the needs of Pakistani and Bangladeshi women. Within this simpler framework, greater complexity and specificity of action becomes possible.

We need to recognise as people’s identities are multi-dimensional, so is the disadvantage they face. As one Pakistani woman responding to a recent EOC investigation said, “In my workplace, having a male boss, not drinking wine and beer and not being able to stay out until 2 in the morning and now having a baby will stop me from moving up.”

So can we turn the theory into practice? Fortunately, we now have a climate in which there are some of the most significant changes in equalities and discrimination legislation that we have seen for decades.

In addition to the 2006 Equalities Act, the Equalities Review and Discrimination Law Review have been commissioned, with the aim of providing both the legislative and non-legislative foundation stones of the Single Equalities Act.

The promised Act will be a breakthrough for several reasons. Currently, to get a comprehensive picture of our discrimination laws you would have to consult 30Acts, 38 Statutory Instruments, 11 Codes of Practice and 12 EC Directives and Recommendations (Equality: a new framework, report of the independent review of the enforcement of UK anti-discrimination legislation, B. Hepple QC, Mary Coussey and Tufyal Choudhury, University of Cambridge Centre for Public Law and Judge Institute of Management Studies, 2000, Hart Publishing). In addition anti-discrimination legislation over the past four decades has been a series of ad hoc reforms, resulting in inconsistent provision.

By providing a simpler, more coherent legal framework, the Single Equalities Act will obey the succinctness principle of Ockham’s Razor – that entities should not be multiplied unnecessarily. I am sure you will agree that current discrimination law is a razor that needs to be sharpened.

Much as I would like to - because this audience is a gift I will likely not enjoy again for a while - I am not unfortunately in a position to give you detailed information on our legal strategy. But I can let you know some of the principles that will underpin it.

The CEHR will take a strategic approach to litigation. Individual cases must serve a wider purpose. But we have some work to do to persuade people that it can do so.

Let me start by confessing that I share the scepticism that all black people have about the law’s ability to deal with the more subtle expressions of discrimination. This was most elegantly expressed by the African American poet Langston Hughes:

"That Justice is a blind goddess

Is a thing to which we black are wise

Her bandage hides two festering sores

That once, perhaps were eyes."

But the law is a necessary even if not a sufficient basis to achieve progress. I doubt that many people will actually disagree with that proposition. So we will use it actively as part of a wider strategy.

In our decisions on whether to take a specific case forward, we will apply an assessment of how it will benefit the public and how it will contribute to improving life chances in the long-term.

Of course our legal powers go well beyond individual remedies. For example, we will work in partnership with a broad range of stakeholders to ensure that listed public authorities meet their positive duties. We will empower by training and financial support our partners, such as trade unions, local equality organisations, and advice providers, to monitor their performance.

But the importance to equalities of individual rights, enforceable in the courts – and therefore of lawyers – should not be understated. A number of specific cases have tested the law and by doing so extended our rights; as well as putting the fear of God into employers and the like, forcing them to pay attention to discrimination. For instance, when Helen Marshall took her cases against South West Hampshire Area Health Authority the result was to equalise the retirement age between men and women and to remove the cap on payouts for discrimination suits. Webb v EMO Air Cargo established that pregnancy discrimination was direct sex discrimination, removing any justification for its practice by employers. It was P v S and Cornwall County Council that caused gender reassignment to be added to the grounds in the Sex Discrimination Act. And Mandla v Park Grove School established Sikhs as an ethnic group under the law, protecting them against discrimination for the first time.

So litigiousness is not always bad. Cases supported by equality commissions have done Britain many favours in forcing a move towards more progressive, fairer practices in many ways, and by giving people a powerful incentive to avoid discriminating. But there is more to equality than discrimination, and there is more to the CEHR than litigation.

So law will call the shots in the CEHR in the sense that our powers are laid down in legislation, but in every other sense, law will be just one of the shots that we fire across the bows of persistent disadvantage. In the CEHR, our legal work will work hand-in-hand with our promotion, advocacy and partnership activities to create an equal and more just society.

But I want to explore why it is that litigation by itself is bound to fall short, and what that means for those of us involved in the work – me as Chair of the new Commission developing a strategy for fulfilling my mandate; and you as experts representing clients, heading up tribunals or trying to improve the places in which you work.

You will all be acutely aware that access to justice through the courts is a luxury good for many of those experiencing discrimination. Many of you may have been faced with people whose cases are meritorious, whose experience has been intolerable, and who should have their day in court – but there is just no way to fund them. This is a powerful reason – and not the only reason – for shifting the burden away from individuals taking a case towards organisations having to think about how to make things better. This is the purpose of the duties on public bodies to promote equality in race, disability, and now gender.

But if resources and access to justice are a problem in terms of these individual rights to be protected against discrimination, a parallel problem exists for regulators, like the equality Commissions, when they contemplate enforcement of the equality duties. The fact is, the Commission for Racial Equality simply does not know how many of the 43,000 or so public bodies in Britain have introduced a proper race equality scheme, let alone how many have actually applied their action plan, or what outcomes have resulted.

Furthermore, not all inequality is justiciable. If the employment penalties faced by women with young children were all simply down to the chauvinistic attitudes of some Neanderthal managers, it would be not only unacceptable but also quite astonishing that there is still a 38% pay gap for part time female workers. And it defies belief that our teaching profession is so prejudiced, but also so subtle in its exercise of prejudice, as to preserve the educational failure of Black boys and Pakistani and Bangladeshi pupils whilst allowing those of Indian and Chinese heritage to exceed the achievements of white pupils. Bluntly, we will never eradicate inequality just by finding all the discriminators and taking them to court.

Moreover, some of the most abhorrent expressions of discrimination are often beyond the reach of law – witness the acquittal of the BNP leader Nick Griffin last year. Griffin carefully couched his remarks in such a way as to appear to attack only the belief of Islam, but not Muslims as such, though his underlying intent – to prejudice his hearers against Muslims, was clear. He got round the prohibitions on speech liable to inflame racial hatred, and he will get round the law on religious bigotry and Islamophobia. So the law alone is simply not enough. Nick Griffin and those like him are liable to spend some time working out how to promulgate their noxious creed whilst staying clear of jail. That doesn’t mean they will win out in the end, though.

In summary, the law cannot guarantee the result. It can help to inhibit bad behaviour, but of course it cannot prevent discrimination altogether, or necessarily secure redress for those affected. It cannot reach into all the causes of inequality. And it is, usually, a lever for essentially procedural changes which we hope will bring about substantive change. But that substance will only emerge if the law is well-designed. At the moment the gap between process and substance is too great, but I think that newer and more subtle uses of the law could offer ways to meet some of these objections. This is particularly clear when we consider the Commission’s mandate on good relations alongside its anti-discrimination work.

In statute the CEHR has a dual duty to promote good relations between groups, and to ensure that people are not discriminated against because of their race, gender, disability, religion or belief, age or sexual orientation.

An old-fashioned approach to these two duties would make the good relations mandate the domain of policy, and the anti-discrimination responsibility the domain of law. Today, we take a more balanced and integrated approach. With the advent of positive equality duties, the promotion of good race relations falls increasingly within the domain of the law.

As I have indicated though, the positive duties are far from perfect. Too often, compliance is about ticking the right boxes and producing the right documents – but these are of no use if they merely sit on an authority’s website and pass through the organisation without leaving a mark. Through the Discrimination Law Review it is time to focus a new, single equalities duty on outcomes, rather than processes, focussing on results and narrowing equality gaps.

The problem of monitoring and enforcing compliance with such duties still stands – let alone the question of how outcomes can be satisfactorily defined. But we may be able to construct them so that this problem is reduced in scale and scope – by making authorities truly accountable for their performance. The key here will be to create a single duty which sets out clearly what the desired equality outcome is, without too much prescription about a process that has to be policed by an army of equality bureaucrats.

I also want to mention the law as an enabler, rather than as a set of proscriptions. Turning to the evidence presented in the Equalities Review, it is manifest that certain kinds of inequality are dogged, persistent and in the final analysis, intolerable. It cannot be right that at our present rate of progress, despite the advent of family friendly policies and so forth, we will not close the gender pay gap for another eighty years. It cannot be acceptable that we will not correct the ethnic employment gap for another century. Or that for some police forces to begin to resemble the communities they police it will take another 150 years.

In cases like this we need employers and service providers to be enabled to take action. At present, there are limits on what can be done to accelerate the recruitment of ethnic minority police officers, for example. The Discrimination Law Review is an opportunity to remove some of those limits and cut to the heart of the problem.

Just as we recognised a few years ago that we would never get to a House of Commons with more women members merely by exhortation, mentoring and other such measures it is clear that to address such persistent inequalities some kinds of preference will need to be introduced. In the case of women in the House of Commons we introduced a measure that allowed political parties to offer only women to their members for selection. It has made a huge difference, with the number of women MPs leaping fivefold in less than fifteen years. Parliament is better and more representative – and more legitimate for this.

In essence this is a decision to prefer, not women, but diversity; so I would not call this positive discrimination, which strictly speaking is a legal measure designed to favour an historically disadvantaged group of people. I rather see it as a preference for diversity in which we provide institutions with the legal flexibility to carry out their functions more effectively.

In the case of all women shortlists, it is not women as a class who were given a special pass – it is the political party that has been given permission to take steps that will lead to a more representative and legitimate group of candidates being put before the electorate.

This is positive action that frees institutions and organisations to do their work more fairly and equally, not a reverse discrimination that simply pays back old scores. It is time-limited, it is proportionate to and it provides for an outcome which meets a widely recognised public need – a more representative legislature. My view is that provided the need is commensurate with the scale of measures taken this should be acceptable.

On a different tack, the role of law and lawyers in relation to human rights is an area that particularly exercises the CEHR Commissioners. At the moment, human rights is a 'dirty word'. It is seen as a charter for miscreants of all sorts, favouring criminals at the expense of security, the dignity of victims, or just 'common sense'. It is misused and abused by government departments as a scapegoat when things go wrong, milking the public’s natural prejudices against anything involving lawyers. Sorry.

The Daily Mail has told us that the Human Rights Act “blights every aspect of our lives” and has been “exploited by terrorists, criminals, travellers and celebrities - not to mention lining the pockets of Left-wing, human rights lawyers, most prominently in Cherie Blair's Matrix Chambers”. Michael Howard said that it undermines Britain's traditions of tolerance and fair play, "turning common sense on its head".

So the task of the CEHR must be to move human rights from the legalistic civil liberties sphere to the territory of standards in public services; of dignity, respect and fairness in human life. Human rights are not just lawyer’s weapons, they are principles of decency. We must talk about the cases in which human rights culture genuinely transforms real people’s lives.

There is plenty here to be learnt from the activities of the predecessor equality Commissions. The DRC in particular has found that the Human Rights Act offers a way to overcome some of the shortcomings of the Disability Discrimination Act.

For example, in the East Sussex case, two disabled sisters had a dispute with the local authority over employees lifting them manually, with the local authority claiming that manual lifting was too great a health and safety risk for employees.

Judging in favour of the sisters, Mr Justice Munby drew on human rights principles and referred to ‘the physical and psychological integrity’ of the person, to find at the heart of that integrity the central value of ‘human dignity’ and ‘the right of disabled people to participate in the life of the community’, matched by the positive obligation of the State to make that participation a meaningful possibility. The Health and Safety Executive looked again at its policy on manual handling and started to get the balance right. This is a concrete example of how human rights law can translate into principles which change policy for the better.

Second, here again we can use law to change culture. I hope that we will be able through the CEHR to support local and innovative work which uses human rights principles and methods to resolve disputes without expensive, time-consuming and intimidating litigation.

An active human rights culture could provide us with a means of framing the discussions that are needed to promote integration or tackle difficult issues between communities. Human rights do not require any substantive agreement between groups but they can set the conditions under which a discussion can take place. This could be one tool that helps bridge the gap between silence and megaphone debates or air wars. In essence we can change the way we treat each other.

The human rights framework won’t dictate how people should behave but it does provide us with an underlying framework of values to help establish how we can learn to live with each other. In a diverse society the shared values are the fundamental glue that holds us together; and the way we behave towards each other is the outward manifestation of our values.

To try to make this clear, let me use a common metaphor. There are millions of cars on British roads, all very different in style, power, and luxuriousness. Not only does the vast range of vehicles reflect our human diversity; what we do with them mirrors the myriad tasks we have to perform in the narrow strips of highway that we share. Given all this, and the fact that each of us really wants to do our own thing in our cars and get where we are going in the shortest time possible, it is quite extraordinary that we manage this diversity of type and purpose so amiably and with relatively little conflict. That’s because we have rules, encompassed in our Highway Code. We all learn it; and though few of us could recite it after passing our tests, we intuitively know what it demands of us in situations where we interact with other road users – at junctions, roundabouts and so on.

In the old days, when cars were fewer and pretty much identical none of this mattered. But numbers and diversity bring special challenges. They demand ways of managing our interactions, most of which are voluntary and consensual. We drive on one side of the road, we stop at lights, we give priority to emergency vehicles.

But the Code is not simply a neutral document, with no intrinsic values. It has one basic underlying proposition – that all road users have rights; and irrespective of how small or mundane your vehicle might be, it has the same right to respect as any other vehicle. We only make exceptions for vehicles that are serving the community’s interest rather than their driver’s – police, ambulances and the like. We take this for granted today, but it is not obvious that it has to be this way. We do not have to imagine what it would be like to have a code based on other values. During the Soviet era, some cities reserved lanes for the Zil automobiles of party officials. As they swished by in their Lada, I don’t suppose that the citizens of Moscow reflected that the special lane represented the correctness of democratic centralism, and the leading role of the party; but they would know for certain that liberal democracies wouldn’t do things this way.

The rules of our community are no different in principle, except that in this country they are not generally written down, nor are they made explicit. Although the Human Rights Act sets out the essential framework for these rules, our particular interpretation of them defines Britain as a nation.

So law is only the start. We need a focus on outcomes rather than processes, and we also need to think about our culture as well as litigation. It is vital that we do so – if we are to get beyond providing remedies for the individual.

The CEHR will be an advocate for, and defender of, the disadvantaged. It has to be. But it has to be more. It has to be a change maker for the whole of society – a body which uses both its leadership role and its legal powers to build a society that recognises the worth of all people, and ensures that no-one is excluded. In essence, we must start from the point of view, not that we are here to defend separate interests, but to create a society that makes such a defence unnecessary. This means a society at ease with all aspects of human diversity, based on fairness and justice.

We will not exist simply to put on plaster casts; we will exist to strengthen the bones of society so they fracture less easily. In this way we will answer the real needs of all citizens, and improve life chances in a way that no public body has previously been able.

Legal equality rights have historically advanced the cause of equality. If it weren’t for changes in the law, restaurants and bars would still be able to refuse admission to people, with impunity, because of the colour of their skin or their disability. Gay and lesbian couples would still be denied acknowledgment or the right to raise children. Trans-people would be unable to change their legal status to reflect their identity.

But there are limits to the law. As the American abolitionist Wendell Phillips said, “law is nothing unless close behind it stands a warm living public opinion”. And, I would add, public sentiment is nothing unless it can be harnessed to galvanise real change and fairer results.

Trevor Phillips’ speech to joint conference of Employment Lawyers’ Association, Industrial Law Society, Discrimination Law Association and Employment Law Bar Association

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