2. Ms Melanie Field

MS MELANIE FIELD (affirmed).

Questions From Counsel to the Inquiry

Ms Blackwell: Is your full name Melanie Field?

Ms Melanie Field: It is, yes.

Counsel Inquiry: Is it Miss Field?

Ms Melanie Field: Ms.

Counsel Inquiry: Ms Field, thank you.

You are the chief strategy and policy officer of the Equality and Human Rights Commission?

Ms Melanie Field: That’s right.

Counsel Inquiry: A position that you have held since 2015, and you have previously been overall – I’m so sorry, been – acted asset joint CEO between July and September of 2021 but in fact have worked at the commission since 2014; is that right?

Ms Melanie Field: Yes.

Counsel Inquiry: You have overall responsibility for strategy and policy at the EHRC and you report directly to the chief executive officer?

Ms Melanie Field: That’s right.

Counsel Inquiry: You have been kind enough to make a witness statement in the course of the preparation for the Inquiry hearings. We can see it on screen now. Please can you confirm, Ms Field, that the statement is true to the best of your knowledge and belief?

Ms Melanie Field: I can confirm that, yes.

Counsel Inquiry: Thank you very much.

Thank you for the assistance that you’ve given, we can see that the statement was signed on 5 May, and thank you for coming to give evidence today.

I want to begin, please, by inviting you to explain to the Inquiry what the Equality and Human Rights Commission is and what it does.

Ms Melanie Field: Yes, the Equality and Human Rights Commission is a statutory non-departmental public body, so it operates at arm’s length from government. It was established by the Equality Act 2006 and set up in 2007. It replaced predecessor equality commissions, the Commission for Racial Equality, Equal Opportunities Commission and Disability Rights Commission, and it has responsibility for protecting and promoting equality and human rights, including enforcing the Equality Act 2010.

Counsel Inquiry: Is one of its roles to promote understanding and engagement with equality and human rights issues?

Ms Melanie Field: Yes, it is, yeah.

Counsel Inquiry: Is it accountable to Parliament through the Minister for Women and Equalities and the Women and Equalities Committee?

Ms Melanie Field: Yes, it is.

Counsel Inquiry: And is funding provided by the Government Equalities Office?

Ms Melanie Field: It is, yes.

Counsel Inquiry: Thank you.

You tell us at paragraph 9 in your witness statement that the commission adopts a “three nations approach”. What do you mean by that?

Ms Melanie Field: So our statutory remit covers England, Scotland and Wales. In relation to Scotland, our human rights remit extends only to matters reserved to the UK Parliament; the Scottish Human Rights Commission has responsibility for devolved matters. But obviously working across three nations we’re working in the context of three different governments of three different political colours, and different social and economic conditions in those nations. So we try to take a corporate approach, but also one that is responsive to the circumstances in the different nations in which we work.

Counsel Inquiry: In terms of pandemic planning and emergency preparedness, and the timescale with which this module is interested, was there any contact from any of the governments to the commission to provide its assistance in terms of pandemic planning and emergency preparedness?

Ms Melanie Field: I’m not aware of any, and a search of our systems has not revealed any such contact.

Counsel Inquiry: It’s Britain’s main equality organisation, is it not?

Ms Melanie Field: Yes.

Counsel Inquiry: Given what has been aired during the course of this Inquiry so far, and what you now know about the manner in which preparedness planning went forwards in various nations, are you surprised that there was no contact, apparently no contact, over the course of time for the commission to provide its assistance?

Ms Melanie Field: I am – yes, I am surprised.

Counsel Inquiry: What level of assistance is the commission able to give in terms of pandemic planning and preparedness, in the knowledge that it’s been suggested to my Lady that there should be a high level of consideration of those who are likely to be affected the most by a pandemic hitting?

Ms Melanie Field: I mean, I think it’s fair to say that the issue was not on the commission’s radar either. So it was not something that we were actively looking at or looking at engaging in, and in fact during the period in question, before the pandemic, our strategic plan, which sets out our strategic priorities, did not include a focus on health and social care, because we had taken the view that the issues in that sector that needed to be resolved were ones that our powers were not best shaped to address, in that they were around kind of funding issues predominantly.

Sorry, can you take me back to the core of your question?

Counsel Inquiry: Yes, of course. I was asking whether or not you were surprised – or, given what you know now –

Ms Melanie Field: Yes.

Counsel Inquiry: – about what’s been aired during the course of the Inquiry, whether or not there is significant assistance that the commission can give and perhaps should have been asked to give in the terms of identifying those who are most likely to be affected by a pandemic hitting?

Ms Melanie Field: Yes, well, I mean, a key part of the commission’s role is supporting duty holders under the legislation that we regulate to comply with that – their obligations well, and a key part of that would be the public sector equality duty which applies to all public bodies. That’s at section 149 of the Equality Act 2010. And that’s the mechanism, really the legislative driver for public bodies to consider equality issues when performing their functions.

Counsel Inquiry: Yes.

Ms Melanie Field: So that’s the mechanism through which I think we could have engaged in terms of providing support about how to comply with that duty well.

Counsel Inquiry: One of the ways in which that duty is complied with is in the creation or carrying out of an equality impact assessment, isn’t it?

Ms Melanie Field: There’s no requirement to carry out an equality impact assessment. The duty requires the duty holder to have due regard to a number of matters, the elimination of discrimination, the advancement of equality of opportunity and the fostering of good relations when carrying out their functions. There are specific duties to publish equality objectives and to publish information about – so I’m referring here to the duties that apply to the United Kingdom Government, the English-specific duties – and to publish information demonstrating how the public body has complied with the duty. But an equality impact assessment I would say is a good practice mechanism for evidencing that due consideration has been given to these matters.

Counsel Inquiry: So there’s no duty to actually carry out the assessment, but it is good practice in complying with the duty to have due regard?

Ms Melanie Field: So there’s no duty to publish a document –

Counsel Inquiry: Publish the document.

Ms Melanie Field: – but there is a duty to have the consideration, so the process of assessing is what is in the duty.

Counsel Inquiry: What makes an effective equality impact assessment?

Ms Melanie Field: Well, I would say what constitutes good compliance with the duty is an appreciation of what the purpose of the function is that’s being carried out, and a consideration of the evidence of how the performance of that duty might impact differently on people with different protected characteristics under the Equality Act – there are nine protected characteristics under the Equality Act – for example, race, sex, disability.

So an engagement with: what’s the purpose – what’s the purpose you’re seeking to achieve? How might what you’re proposing to do impact differently or be experienced differently by different groups? Then, are there mitigations that you need to put in place, first of all to make sure that what you’re doing doesn’t adversely impact particular groups, which might be unlawful discrimination; and, secondly, are there opportunities to alleviate inequalities in performing that function?

Counsel Inquiry: So the results of that assessment and the publication of that data, it seems, could help in two regards: firstly in relation to preparedness for those who are most likely to be affected by a pandemic, but also in relation to resilience, so improving the plight of those with protected characteristics; is that right?

Ms Melanie Field: Exactly so. I mean, I think on reviewing the evidence that was sent to me as part of this process, it seemed to me that there was an inadequate consideration both of the existing health and other inequalities that might mean that people going into an emergency situation would not be on a level footing, and secondly that they might need different responses in order to come out of – you know, have equal outcomes.

Counsel Inquiry: Yes. So going forwards, what involvement and impact can the commission have in assisting in terms of pandemic preparedness and also resilience?

Ms Melanie Field: Well, the commission itself does already provide quite a lot of guidance for public bodies about how to comply with the duty well, and I referred to some of those in my witness statement.

So we do give pointers to public bodies, but we also occasionally work with public bodies. So we might offer to look at an equality impact assessment and comment on it. We might be able to draw on our own stakeholder engagement and evidence about the inequalities that exist, and feed those – that thinking into the assessment process.

We also conduct our own analysis of inequalities in Britain, so we publish a statutory report at least every five years which sets out some of the issues that I think perhaps could have been or should have been considered in the planning process.

We are also able to assist public bodies with putting them in touch with representative groups of different communities who might also be able to feed into thinking.

Counsel Inquiry: Dr Halima Begum, who is chief executive officer of the Runnymede Trust, has provided a witness statement to the Inquiry in which she states that:

“The United Kingdom governments must ensure the country is better prepared to manage a future pandemic in a way that considers the impact on inequalities, including ensuring systems can quickly and effectively identify those who are clinically vulnerable through further investment in high quality linked data.”

Do you agree with that remark?

Ms Melanie Field: I do agree with that. One of the key ways of understanding that there is a problem is to have data on the problem. If you don’t have the data, then you won’t know what’s happening. But I think in the health and social care space there isn’t consistency of approach to data collection or comprehensive data collection around people’s protected characteristics. So we would always advocate for collecting comprehensive data that is disaggregated so that you can analyse the different situations of different population groups.

I mean, one of the things that came out of the pandemic, I think, quite early on was the inability to evidence indications that there were disproportionate deaths among certain ethnic minority communities because of the inability to link data on ethnicity to death certification. So there’s something about, you know, collecting that data but also being able to join that data up between different systems so that you can get a proper picture of what’s going on, and that’s important both for predicting what might happen but also, in real time, monitoring what is happening and then being able to respond to it.

Counsel Inquiry: Thank you.

I’d now like to turn to the lessons learned for the future and what you say about this in your witness statement, beginning at paragraph 24. You say that, as an organisation, you recommend that:

“… the government [going forward] should routinely seek views on the likely different impacts of proposals on different groups, where pressure of time allows, and ensure that impacts are monitored and steps are taken to mitigate any adverse impacts on particular groups.”

Now, is that something that should be, in your view, embedded into the government’s planning process?

Ms Melanie Field: Yeah, I mean, I think that the lesson for everyone is that in a crisis that’s not the best time to try and get everything right.

So, I mean, I was struck, looking at the impact assessment of the 2011 pandemic preparedness strategy, that there appeared to have been – well, there’s no note of any engagement with any groups representing ethnic minorities, or, indeed, any reference to existing information about health inequalities, for example Professor Marmot’s review, or any engagement with the Government Equalities Office or ourselves. I think what we have all learned is that you need to have those systems and mechanisms in place and you need to have relationships and understanding of those communities before you – before you’re trying to respond in an emergency situation, so that you have those relationships then that you can draw on.

Counsel Inquiry: Indeed Professor Kevin Fenton, who has given evidence to the Inquiry, has told my Lady about the importance of co-production, so not just obtaining the data and the information, but the government actively seeking the assistance of groups and units in order to prepare the necessary documentation together, if you like.

Ms Melanie Field: Yeah, I think obviously if you’re going to communicate effectively or prepare effective responses for different communities, then those need to be informed by the needs of those communities.

I mean, the other thing that I would say is that that is important – I mean, another thing that came out of reviewing the documentation was that there seemed to be an expectation that these issues would be sort of picked up as the pandemic played out at local level, and that it wasn’t really possible to predict or make assessments at the national level. But of course we know that there are inequalities that play out nationally.

Counsel Inquiry: Yes.

Ms Melanie Field: I think it is – it’s also important to remember the public sector equality duty is not delegable. So wherever you are in the system, you need to comply with it, as it relates to the functions that you are performing as a public body.

Counsel Inquiry: In terms of the practicalities of obtaining data and seeking an effective consultation, at paragraph 28 in your witness statement you talk about the Welsh Government during the pandemic – so I’m straying beyond the timescale of Module 1 for a moment, but just to use this as an example – using online platforms to enable ministers and officials to seek the views of and learn directly from the experiences of groups with particular protected characteristics.

Now, that is an example of a process that can be used outside of a pandemic, you know, hitting, isn’t it? That platform process, that connection between ministers and those with protected characteristics, can be used at any time?

Ms Melanie Field: Indeed, and of course during the pandemic, as a result of the pandemic, we’ve all learnt to do that kind of online engagement much better, so there is an opportunity here to build on that and ensure that that becomes sort of part and parcel of how public bodies make policy in a much more collaborative way in future.

Counsel Inquiry: Finally, I just want to ask you, Ms Field, about the human rights lens that you identify within the course of your witness statement.

Ms Melanie Field: Yeah.

Counsel Inquiry: You identify that there is a gap in routine consideration of policy decisions being seen through a human rights lens. What do you mean by that, and how might that affect pandemic policies and pandemic planning?

Ms Melanie Field: Well, I mean, in the same way as the public sector equality duty requires consideration of inequalities and equality issues in the performance of public functions, the Human Rights Act makes it unlawful for public bodies to act incompatibly with the rights set out in the European Convention on Human Rights, and there are also other international human rights treaties that the UK has signed up to, and those – those treaties contain rights that are highly relevant to an emergency situation. So, you know, the right to life, the right to respect for private and family life, the right to association, the right to education, and there is a requirement that those rights are enjoyed without discrimination. So the state has a responsibility to make sure that people are not kind of disadvantaged in their enjoyment of those rights.

The human rights framework provides a sort of legal and, in a way, ethical framework for considering some of these difficult decisions about how these rights are balanced. So how do you strike the right balance between the right to private and family life, you know, for example, for a person in a care home to have contact with their family against the right to life? How do you balance the rights of individuals against the kind of broader public good?

So that framework, you know, obviously, as the Equality and Human Rights Commission, I would say should be absolutely guiding both the planning and the response to any emergency situation.

Counsel Inquiry: Going forwards, as guidance and policy is updated and the experience of Covid-19 is taken into account, the Human Rights Act and the protections that that provides to people should underpin the guidance and policies, and, as you’ve just explained, there is a balancing exercise that needs to be undertaken in order to be able to have proper consideration and arrive at the right place?

Ms Melanie Field: That’s right, yeah.

Ms Blackwell: All right, thank you very much.

My Lady, unless you have any questions, that completes Ms Field’s evidence.

Lady Hallett: Thank you very much indeed for your help, Ms Field.

The Witness: Thank you.

(The witness withdrew)

Lady Hallett: I’ve been encouraged to take an early break.

Ms Blackwell: Right.

Lady Hallett: Nods. So I shall return at 11.10.

Ms Blackwell: Thank you, my Lady.

(10.54 am)

(A short break)

(11.10 am)

Mr Keith: My Lady, the next witness is Nigel Edwards of the Nuffield Trust.