Equality Bill [HL]

My Lords, we warmly welcome not just the concept of the Bill but also the Bill itself. We will work constructively to secure its safe passage. We hope to persuade the Government to improve it in some ways but to resist the temptation to table a plethora of amendments. We will concentrate only on what we regard as essential to achieve the Bill’s important objectives. In particular, it is not sensible to seek to amend the Bill to fill gaps that can be filled coherently only when the single equality Bill is introduced. I mention that at the outset because there has been an avalanche of briefings from the many special interest groups and the equality agencies, making a variety of useful and normally sensible points. Except for purposes of clarification, we should take up only those matters that need to be dealt with in this Bill rather than in the wider equality Bill. By a wider equality Bill, I mean one that brings together all the different strands of unlawful discrimination legislation, fills in gaps, removes inconsistencies, levels up protection and produces a coherent, comprehensive and user-friendly scheme. As the noble and learned Lord the Lord Chancellor knows, left to ourselves, we on these Benches would not have legislated first to create a Commission for Equality and Human Rights and then to reform the substance of equality law. The new commission will have a formidable set of responsibilities and will not be helped from the outset by the need to operate a mass of opaque, inconsistent and incomplete equality legislation, some of which will be in statutes, some in regulations, some in EU legislation and some in case   law. But, for reasons that we understand, so powerfully explained by the noble and learned Lord the Lord Chancellor today, the Government decided to proceed first with the commission and some piecemeal changes dealing with religion and belief, and the gender duty. We must make the best of it until we have the larger reforming measure. On that point, will the Minister inform the House on the progress made on the discrimination law review? I, too, have interests to declare. Like the noble Lord, Lord Parekh, and the noble Baroness, Lady Whitaker, I was a member of the Joint Committee on Human Rights, which reported extensively on this subject. I was also an architect of the Sex Discrimination Act and the Race Relations Act in the mid-1970s. It is a particular pleasure to participate in this debate with the first chair and deputy chair of the EOC, the noble Baronesses, Lady Lockwood and Lady Howe of Idlicote, who have such great experience in that field, as have so many others concerned with various strands covered by the Bill. My single equality Bill was approved by the House two years ago. It was based on the recommendations of the Hepple report. The noble and learned Lord the Lord Chancellor was good enough to chair the meeting that launched the comprehensive and authoritative report by Professor Sir Robert Hepple and his team, reviewing the existing anti-discrimination legislation and proposing legislative reforms. That report, and perhaps my Bill, may assist the Government when they construct the single equality Bill promised in new Labour’s recent election manifesto and long advocated by my party. We are very glad that the Department for Constitutional Affairs, with a very powerful ministerial team, has lead responsibility for the Bill. When I worked in the Wilson administration with Roy Jenkins, we had the great advantage that a heavyweight Cabinet Minister with a clear manifesto mandate had overall responsibility both for gender and race discrimination legislation. Thirty years on, the position has become much more complicated and responsibility for developing equality and human rights policy is shared by at least five government departments. In my view, it would enhance the preparation of the single equality Bill if the same powerful ministerial team and its expert advisers were given lead responsibility for the present Bill and the single equality Bill. We especially welcome the fact that there will be a single body to tackle the different forms of unlawful discrimination. Whatever the Mayor of London may say,   it makes no sense to proliferate more and more   commissions to deal with different forms of discrimination. A black and disabled woman who believes herself to be the victim of discrimination, perhaps on several grounds, should be able to go to a one-stop shop instead of three or more different shops. A single equality commission will encourage an overarching and strategic approach to the principle of equal treatment without discrimination, bringing together the different strands and avoiding wasteful duplication. To the noble Baroness, Lady Miller of Hendon, I say that I do not believe that there will be wasteful duplication. One of the great merits of these reforms is that they will avoid it—for example, having lots of lawyers and commissions makes no sense. The Government are to be commended for having resisted the calls from some to retain and add to the existing commissions or to create internal structures likely to encourage divisions rather than cohesion. An equality and human rights commission should ensure that equality becomes better understood as a fundamental human right to be enjoyed together with other human rights, civil and political, and economic and social. It should be able to promote a culture of human rights and to investigate abuses. Such a commission was envisaged a decade ago in the Cook-Maclennan commission agreement. The case for such a human rights commission was carefully examined by the JCHR. We welcome the Government’s acceptance of that case. It would be churlish—I hope that I am never churlish—to complain that it has taken more than a decade and that we shall have to wait for several more years before we have a comprehensive and workable statutory scheme, but it should be worth the wait. We strongly believe that the new commission should be a constitutional watchdog, a strategic law enforcer and a promoter of good practice and public education. We regard it as essential that it will be independent of government and seen to be independent in the way in which its members are appointed and how it is funded. It should not be subject to ministerial direction or dictation. Ultimately, the commission should be accountable to Parliament. The JCHR has been imaginative in suggesting ways in which that might be done. In our eleventh report of 2003 we considered the different models and were convinced that the commission should not be a standard non-department public body, but should have the character of a constitutional watchdog, such as the National Audit Office, the Electoral Commission or the Parliamentary Commissioner for Administration. We came back to that in our sixteenth report for 2004–05. We look to Ministers to bring forward amendments to achieve that, given the importance which the existing equality agencies and many others attach to independence. The JCHR has repeatedly made it clear that it is also incompatible with the commission’s independent status that it should be subject to ministerial direction or dictation regarding inquiries or investigations. Of course it should be open to a Minister to request the commission to undertake an inquiry, but not to require an investigation. The same applies to other provisions which give Ministers unnecessary powers of direction. It is also essential that the commission is professionally staffed and that it has sufficient resources to carry out the formidably wide range of tasks for which it will be responsible; that is, tackling unlawful discrimination and breaches of human rights, and treating strategic law enforcement as a high priority. The commission will need to give equal protection to victims of all types of unlawful discrimination and to avoid creating separate, competing internal departments. Although I was forced to make that concession with my Bill, I regret that that has already happened in relation to disability, but I understand why. I certainly would oppose the creation of similar committees to deal with the other strands, which would simply lead to a lack of cohesion. The choice of the first chair, the commissioners and the appointment of senior staff will be crucially important. People matter at least as much as institutional architecture. It is vital that this should be a genuinely new commission, making a fresh start and not carrying too much baggage from the past. Another condition for our support is to ensure that the commission has sufficient legal powers. That includes the power to tackle persistent discrimination and to tackle directly as well as indirectly discriminatory practices. That is where the existing legislation contains unnecessary restrictions. The Bill appears to omit those necessary powers. The Government have given an assurance that the commission’s existing powers will not be reduced. In that respect, the Bill appears to reduce existing powers instead of strengthening them. We need to be sure that the commission’s existing powers to assist claimants are also not reduced. We accept that the commission should not be given responsibility for supporting individual cases claiming breaches of the Human Rights Act, but we do not accept that the commission should be toothless when tackling human rights abuses. It should at least be able to institute judicial review proceedings where it is in the public interest to seek a declaration that a particular practice, procedure or rule operates in breach of Section 6 of the Human Rights Act. The EOC and the CRE have the power to use judicial review in this way. From my personal experience on their behalf, it has proved to be one of the most effective, cost-effective and proportionate ways of eliminating discrimination and promoting equality. As the noble and learned Lord the Lord Chancellor well knows, there are strong safeguards to ensure that judicial review is not used without good cause and that the remedies are discretionary. It is not acceptable that the commission will have this power only when dealing with discrimination and not when dealing with other breaches of human rights. We attach great importance to that because otherwise this will be a very lopsided body with strong enforcement powers for discrimination but none at all for human rights. This proposal seems to the JCHR to be the most modest one that we could put forward, falling well short of more draconian powers. The JCHR noted that without the power to seek judicial review under the Human Rights Act the commission ““will be neutered””. An amendment is needed to Clause   32(3)(c) to achieve this, while leaving the victim test in Section 7 of the Human Rights Act otherwise intact. The commission’s human rights mandate needs to include not only the European Convention on Human Rights but also the other international human rights treaties by which the UK is bound. The JCHR has interpreted its mandate in this way, using the wider treaties, and it is important for the commission not to be blinkered but to be able to do so as well. I have concentrated on the commission because of the importance of ensuring its effectiveness from the outset. We also need carefully to consider the more swampy territory in Part 2, which deals with discrimination on grounds of religion or belief beyond the employment field. Part 2 contains some controversial provisions and exceptions, and the JCHR identified some significant anomalies. One of the good things in Part 2 is that the Government have not simply copied over race into religion when it comes to the civil wrong of harassment and one is dealing with goods, services and facilities. I believe that the Government have not done so because of free speech and that they were worried that, for example, in selling a book an inflammatory poster in a bookshop might lead to suggestions of unlawful harassment. I shall deal with this matter in another debate in several months’ time, but I wish the Government would do the same in relation to crime, and not simply copy over race with no modification into religion. So the noble Baroness, Lady Miller, may wish to know that the Bill has been more sensitive on free speech than the criminal Bill. Many of the agencies that have lobbied have, understandably, sought the extension of the protection of Part 2 beyond religion and belief to cover sexual orientation and age. That would be beyond the long title as it stands. We on these Benches wish it to be extended in that way, and we will need assurances that it will be, either in this Bill or in the wider Bill. Part 3 imposes a duty on public authorities to promote gender equality. That is also most welcome as it matches the duty in the field of race. But it is regrettable that the opportunity has not been taken to extend the positive duty to other strands. My Bill recognised that it cannot be done in exactly the same way for each strand for reasons of personal privacy. One cannot apply exactly the same duty in relation to sexuality and religion as one can in relation to other kinds of discrimination. But can the Minister confirm that this will be taken care of, either now or hereafter? The noble and learned Lord the Lord Chancellor referred to unequal pay for equal work. Can the Minister confirm—it was not confirmed in the debate in the other place when Vera Baird, MP, asked the question—that public bodies will be tackling unlawful pay discrimination on the grounds of gender, as well as other aspects of discrimination? In other words, can she confirm that the positive duty will cover unequal pay as well as other matters? I am sure that it will, but we need some assurance. It is also important that the gender duty includes harassment to bring it into line with the disability duty because there is an unnecessary inconsistency. I am sorry to have taken so long but I shall conclude with one other point. The noble Baroness, Lady Miller, rightly referred to it. I agree that the Court of Appeal’s interpretation of a ““public authority”” has been too narrow. Again, the JCHR produced a convincing report explaining why. In a powerful lecture last week, the noble and learned Lord, Lord Steyn, expressed his agreement with the view taken by the JCHR. In my view, the answer is to get a test case before the Law Lords in which the Government indicate that a broader interpretation is needed. We do not want what we have, for other reasons, in the Freedom of Information Act, which is page after page listing public authorities instead of a flexible and general definition. I agree that this is an important issue but I do not think that it should be dealt with by an amendment to the Bill. It should be dealt with by the judges in an appropriate case, and soon. To conclude, we greatly welcome the Bill and look forward to working closely with the noble and learned Lord the Lord Chancellor and the noble Baroness, Lady Ashton of Upholland, during its passage through this House.