Windrush: EHRC investigation

The EHRC has announced the launch of an investigation into “the extent to which or the manner in which” the Home Office complied with the PSED when it implemented the ‘hostile environment’ immigration measures which resulted in the Windrush scandal.
The peculiar language (“the extent to which or the manner in which”, as distinct from “whether”) stems from the statutory power under which the investigation is to be conducted: whereas, under s20 Equality Act 2006 the Commission “may investigate whether or not a person …  has committed an unlawful act”, under s31 Equality Act 2006 the EHRC has the power to “assess the extent to which or the manner in which a person has complied with” the PSED. The benefit to the EHRC is that, by contrast with s20 investigations, it does not have first to have a suspicion that there has been a legal breach. The assessment is expected to be complete by September 2020.

In announcing the assessment, EHRC Chair David Issacs characterised the Windrush scandal and the hostile environment policies as a “shameful period of our history” and stated that the:

“impact of COVID-19 and the killing of George Floyd by US police officers has resulted in urgent calls for action to end the systemic and entrenched race inequalities that exist in our country. The law requires that all public bodies must promote inclusivity and opportunity by considering the impact their policies have on ethnic minorities. We have long called for government to produce a comprehensive race equality strategy to tackle these injustices. This assessment and the Home Office’s response to the recommendations in Wendy Williams’ report will focus on the importance of PSED to put our country’s values on track.”

The EHRC has previously used its s31 power to conduct an assessment of the Treasury’s compliance with its PSED duties in its 2010 Spending Review. It is currently undertaking s21 investigations into anti-Semitism within the Labour Party and into suspected gender pay discrimination at the BBC.