EHRC unable to get public bodies to use 1+2=3

As some people in Scotland continue to struggle to accept the vote against independence, it seemed as good a time as any for Scotland's Parliament to quiz the Equality & Human Rights Commission [EHRC] on what progress it was making with its regulatory and enforcement role in making equality happen in Scotland.

Late last month, barely a week after the referendum vote, the Equal Opportunities Committee took evidence from the EHRC in Scotland on what it has been doing since last giving evidence to the Committee on the immediate aftermath of savage cuts to the budget of the EHRC.  If you are a fan of car crash evidence sessions, you can read a transcript of the full session here.

The EHRC.  Evidence on progress with equality across the many diverse communities living in Scotland and how the discrimination they face is being dismantled, permanently.  Remembering always that although the EHRC is but a child in years, the struggle to identify and eliminate discrimination on the basis of such as race, disability and equal pay for women, has had a legal mandate for decades.

And who from the EHRC in Scotland turned up to present evidence ?  Two white, middle-aged men, dressed in the most boring-but-safe of suits in which so many seek to remain anonymous, neutral and non-threatening to the status quo.  Before the session had even started, the evidence was being presented to the Committee in the most powerful, non-verbal manner.

One of the most obvious places to find discrimination is in the workplace.  The Committee soon questioned the EHRC on this, with member John Mason asking :

The EHRC found that employee monitoring was “patchy and inconsistent across all sectors”.  Overall, performance was poor: of the 184 public authorities examined, only 27 per cent produced the full set of information on the protected characteristics of their staff. Will you comment on why performance seems to have been poor?

The EHRC response ? :

 We are moving into what we are calling a diagnostic phase, in which we are working with the Scottish Government to try to get underneath the data. We can see the outcome, which is poor results, as you highlighted. We need to know why that is.

In other words, those three little words a lot of people struggle to use in their work : I don't know.  

Later in the session, Siobhan McMahon asked about progress on equal pay :

you mentioned pay gap issues when you talked about matters that have come up in discussions with Scottish Government officials. How are you taking that forward? As much as discussion at that level is welcome—I am sure that the committee will welcome that—it is a case of taking that forward and getting real progress on an issue that frustrates many of us. Have you set out anything concrete that you wish to take forward with the Scottish Government?

The EHRC response :

The way in which pay gaps have been identified and measured in the public sector is wildly inconsistent at the moment ......public bodies are adopting a variety of ways of calculating pay gaps. Working with the Government and Close the Gap, we want to understand why there is such variety ....

So, not only does the EHRC not know why the data published by public bodies is inconsistent, they are unable to do anything on closing the equal pay gap until they can get that consistency in data.

Elsewhere in the session, Siobhan McMahon asked about the EHRC using enforcement powers in relation to the performance of public bodies on the equality duties.  

Yes, for example. How many times have you taken a public authority to court for not complying?

The EHRC response ? :

We have never taken a public authority in Scotland to court. We have never had to.

In summary.  The EHRC regulatory function is a failure since they are unable to get public bodies to gather sufficient good quality data on their workforce which would enable the identification of discrimination and allow work to eliminate it.  They are also unable to get public bodies to use the same arithmetical approach to calculating pay gaps so that action can be take to close and eliminate those.

In the same way, the EHRC's enforcement function would seem to be a failure since, by their own admission, the EHRC has never taken a public body to court.

We can but hope that if equality legislation is devolved to Scotland, Wales and Northern Ireland, we create a new regulatory and enforcement body which comes up with better answers than "we don't know".