27 July 2023

The EHRC is the latest battleground in the left’s assault on our institutions


There is more than meets the eye to the saga of the Equality and Human Rights Commission, whose chair, Baroness Falkner, is currently under investigation following accusations of bullying and bias. The latest episode occurred last weekend, when equalities minister Kemi Badenoch intervened to make it clear that any probe must ensure she receives scrupulously fair play.

Put simply, there is every reason to think that this whole drama reflects an underlying fight to the death for political control of a supposedly arms-length governmental body devoted to the non-partisan promotion of human rights.

First, a bit of history. In 2020 the then equalities secretary, Liz Truss, determined to do something about what she saw as the Commission’s consistently leftish institutional leanings. Witness, for example, its suggestions that the demands of UN human rights activists should be taken pretty well at face value; its demand for progressive teaching on LGBT matters in all primary schools; and publications like Is Britain Fairer? essentially chiding the Government for not being egalitarian enough.

Truss appointed three new commissioners with varied, but consistently non-leftish, worldviews. Shortly afterwards, following the retirement of the Commission’s distinctly activist chair David Isaac, Truss installed Baroness Falkner, a Liberal Democrat with a no-nonsense reputation and a background in finance.

The change in emphasis at the new-look Commission fairly quickly became palpable. Its most visible recent manifestation has been the body’s rejection of the more extreme claims of the trans activists, its sympathy for women-only spaces, and its suggestion that the equality legislation should be clarified to make it clear that the word ‘sex’ means ‘biological sex’ rather than the gender a person feels comfortable in.

The identitarian left, to which quite a number of Commission employees belong, are predictably unhappy about this, and have fought back. In May this year someone leaked a story that Baroness Falkner faced a formal investigation for mismanagement and anti-trans bullying. Channel 4 ran with it, with Cathy Newman presenting a picture of a consistently ‘toxic culture’ in the organisation. The investigation was stopped due to fears that this prevented a fair hearing. Following legal reassurances, it re-started only last week, only to be paused again following Badenoch’s intervention.

We do not know the full facts yet, and it’s best to avoid speculating. But on any reading of them, two very important points arise.

First, it’s hard not to suspect that what is at stake here is not really bullying as such, but a determined campaign by the old guard to get rid of a new management whose politics it dislikes. What’s the evidence? One suggestive feature is the nature of the allegations. If the complainants had proof of serious bullying – bawling out junior staff, threatening workers for not meeting impossible workloads, or whatever – one would expect to have heard some mention of it. After all, to make a good case you normally put forward your strongest point first. The headline allegations seem to be that the chair at one point referred to a trans woman as a ‘bloke in lipstick’, and that some staff felt discriminated against by the chair’s trans-scepticism. That may well amount to bullying. But Falkner’s defenders, who say the accusation is part of an ideologically motivated witch hunt, also deserve a hearing.

It’s also worth noting that the EHRC has been subjected to a more general assault from trans activists and elements of the left – attacks, for example, on the social media history of some board members, a letter from trans activist organisations to the UN in Geneva describing the organisation as a failed institution, and a campaign to persuade a progressive UN apparatchik to condemn its viewpoint.

Secondly, this episode exemplifies a growing use of bullying allegations, whether based on civil service conditions, the Ministerial Code or whatever, to truncate political discourse by alleging distress or psychological harm. Two previous high-profile examples include determined efforts by civil servants to unseat Priti Patel as Home Secretary from 2017 onwards, and later Dominic Raab as Justice Secretary this year. The former, a vicious campaign which even extended to lawfare in the form of a judicial review claim against then prime minister Boris Johnson, was ultimately unsuccessful; the latter, unfortunately, did succeed when Raab did the decent thing by resigning to avoid dragging his party through the mire again.

This should worry us. With private employers there is a case for saying that where there is an impasse between workers and overbearing or abrasive bosses, in the last resort it is the latter who must carry the can. But with government ministries and organisations like the EHRC, the dynamics are different. These organisations are there precisely to pursue an agenda – an agenda, moreover, set by elected politicians. In a democracy, workers should not be able to force changes to that agenda, however much they may claim to be distressed or even psychologically harmed by it.

What can we do about this? Two ideas come to mind. One is to rewrite ministerial and civil service codes to make it clear that any definition of bullying or mistreatment in terms of employment expressly excludes harm caused by political statements or the promotion of government policies. The other, which would mitigate any harm done by the former, would be a culture under which it was made easy for any civil servant who did suffer as a result of such political statements to get a transfer to another department.

The details would no doubt be difficult to work out. But one thing is clear: where there is a choice between delivering on government policy and the exercise of free speech by politicians and their appointees on the one hand, and distress to employees on the other – it is the former that must prevail.

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Andrew Tettenborn is a professor of law at Swansea Law School.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.