Litigation Strategy Consultation 24 November 2014, Edinburgh

Examples of strategic cases Approximate number of times that EHRC has agreed or agreed in principle to use its powers: to provide legal assistance under s28, to intervene in proceedings under s30, or to institute judicial review or other proceedings under s30, even if the matter subsequently did not proceed or the decision was later revoked. Notes: sections refer to Equality Act 2006 “own-name” proceedings are judicial review or other legal proceedings instituted by EHRC under s30 for the purpose of these figures, s28 assisted cases are cases in which formal approval was granted in accordance with the Commission’s governance arrangements for the Commission to provide legal assistance to a specific individual, typically extending to in-house legal resources, solicitors costs (if out-house), counsel’s fees (if required) and other necessary costs (e.g. court fee). The figures also include some cases where formal approval was granted for limited or initial s28 assistance which did not extend to the anticipated full costs of the litigation (the extent of s28 assistance is agreed on a case by case basis). the Commission has been involved in many other cases in different capacities during this time - for example, undertaking initial scoping or assessment work, signposting, providing initial casework assistance, or (until 2012) providing helpline assistance or making arrangements for conciliation. These matters – where formal case-specific approval to use our s28 power was not required under our governance arrangements – are not reported in the figures above. for the purpose of these figures, where the Commission agreed to be involved in more than one stage of proceedings relating to the same matter (e.g. a first instance hearing and an appeal), each stage is counted separately. the figures exclude work carried forward from the legacy equality Commissions (Disability Rights Commission, Equal Opportunities Commission, Commission for Racial Equality)

Consultation framework Purpose To hear views from a wide range of individuals and organisations including lawyers, advice centres, the voluntary sector other bodies on their priorities in terms of human rights and equality issues, and to use this insight as a key tool for setting the agenda for the organisation's legal work. Survey online 22 September to 12 December 2014

Consultation framework – Existing policy Principles Prioritise cases which advance objectives in strategic plan; Identify and prioritise cases where the Commission is uniquely placed to act; Assess if non-litigation options are available in each case. Criteria Chances of success; Cost-effective use of limited resources; Case will clarify law. Priority issues Reducing pay gap; Ensure human rights protection for recipients of social services.

Consultation framework – Survey responses The following pages include some of the questions from the survey and some early answers resulting from the consultation.

Consultation framework – Survey responses Which principles and criteria would be of value in the Commission's role as a National Human Rights Institution? “The Commission has intervened in a number of high profile cases which have been brought by expert NGOs and there are already a number of other interveners who are providing expert support. It often seems in these cases, that there is enough expertise and the Commission's resources could be better spent utilising its ability to bring claims under the Human Rights Act in its own name where it may be difficult for an individual claimant to have victim status or the resources to bring a claim.”

Consultation framework – Survey responses Which principles and criteria would be of value in the Commission's role as the National Equality Body? “This is, for many people, the watchdog of compliance to legislation relating to human rights, equality, inclusivity and accessibility. The Commission must be allowed to have teeth in terms of enforcement of legal obligations, be able to impose sanctions if needed, provide advice on support to comply with legislation and increase public awareness of your role and powers.“

Consultation framework – Survey responses What are the most pressing issues in the areas of discrimination and/or human rights law? “'Caste' based discrimination.” “DWP benefit sanctions.” “Disabled people's freedom of movement.” “Disability and gender discrimination in the work place.” “Mistreatment of patients in hospitals/care homes.” “Sexism and dual discrimination (older women).”

Consultation framework – Survey responses “Public and Government departments legal requirement to show due regard under the Public Sector Equality Duty when drafting legislation, policy and guidance.” What could be effective test cases in the fields of discrimination or human rights? “Freedom of conscience, freedom of thought, freedom of speech have all been threatened by recent rulings which have favoured the protected characteristic of sexual orientation over that of religion & belief.” “Wording of the Equality Act (Disability Section) which says: ‘An employer has a duty to make reasonable adjustments in the work place when employing a person with a disability’.”

Consultation framework – Survey responses “Confusion results from combining religion and belief into one category.” Which provisions of the Equality Act 2010 are not working or need clarifying? “Clarity is required as to the criteria for deciding how to proceed if one protected characteristic conflicts with another. The most common example of this is the clash between religion & belief and sexual orientation.” “I think there is much confusion on the s.193 implications for charities. I also think charity regulators are confused between the implications of this section in relation to individual charities, and their public sector equality duty.” “Sections that relate to accessibility. There are still gaps in relation to accessible public transport like coaches. People with sight impairments still struggle to travel independently on buses or coaches due to the lack of assistance provided by the operators.”

Consultation framework – Survey responses Are there issues arising out of the Human Rights Act 1998 where you believe the Commission is particularly well-placed to bring or support a challenge? “State surveillance.” “Forced 'religious' conversion.” “Protecting the right to family life of separated non-resident parents.”

And finally… SURVEY Please complete the survey by 12 December 2014. The revised survey responses will be published in February 2015. https://www.equalityhumanrights.com/about-us/our-work/ehrc-consultations/litigation-strategy-survey?wssl=1 CASE REFERRALS Legal representatives can call to discuss a referral with the Lawyers' Referral Helpline on 0141 228 5951 (Monday to Friday). The Lawyers' Referral helpline can also be accessed on-line at legalrequestscotland@equalityhumanrights.com.