Equality Bill [HL]

My Lords, I welcome the Equality Bill and the proposed Commission for Equality and Human Rights. Like many Members of this distinguished House I wish that the commission had been set up after the Equality Act was enacted, because this is what we have done with almost all the other commissions that I can think of: the Commission for Racial Equality or the Equal Opportunities Commission. I should also have thought that the Equality Act would have tightened up our very disparate bits of anti-discrimination legislation and given the Commission for Equality and Human Rights a clear sense of direction. Since we have for some reason decided to proceed with the commission and to bring in the Act afterwards, I have no doubt that we will soon be going through the same debate and revisiting the nature and structure of the commission once the Equality Act is in place. However, I very much welcome the commission. It is almost unique in the European Union and indeed in the western world. I cannot think of its counterpart. I am naturally delighted that the Labour Government have kept up their progressive record of bringing in such legislation on issues relating to human rights and equality. The commission has many extremely important and commendable features. It provides a one-stop shop; it integrates different forms of discrimination; it is not   entirely punitive and leaves a great deal of room for conciliation; it also mainstreams equality and therefore equality does not appear to be merely a concern of ethnic minorities, women or otherwise marginalised and powerless groups. It is proactive and has considerable powers—and therefore fairly sharp legal teeth, which can certainly bite depending on how the commission is led once it is set up. I welcome the commission because, if I may speak for a minute as a philosopher, it marks a tremendous step in reshaping our constitutional and political culture. It takes us from the culture of liberty, which we have had for the past 1,000 years, to a culture of rights; from the culture of subjecthood to that of citizenship; and from the culture of hierarchy to that of equality. Although commending a large number of the desirable qualities of the commission, I have five important worries, which I want to submit to your Lordships and, through you, to the Minister for a response. First, I am not sure that the commission is independent or enjoys anything like the independence enjoyed by the Commission for Racial Equality or the Equal Opportunities Commission. Many noble Lords have pointed that out. Of course such a commission must be answerable to Parliament through the Secretary of State, but it should not be subject to the Secretary of State’s detailed direction or interference. Independence is important because, as I said, this is a momentous step in the cultural evolution of our society. Therefore the commission must enjoy popular support and legitimacy, and must be free of any partisan or party-political pressure. I am not sure that the Bill sufficiently guards against those dangers. I shall give three examples. I am not entirely convinced why the appointment of the chief executive can be made only with the consent of the Secretary of State. Nor am I sure why the Secretary of State has the power to dismiss a commissioner; so far as I can see, the Bill does not say whether the Secretary of State should refer to the chairman of the commission before doing so. There are also about six references to complying,"““with a direction of the Secretary of State””." With reference to four of those, if that is how the Commission for Racial Equality had been set up when I was privileged to be its deputy chair and acting chair, I simply would not have been able to do many of the things of which this country is legitimately proud. During my time, we went through various political parties. I am sure that some political parties were not favourably disposed to the commission, and I would have received directives which would have been impossible to carry out. I strongly urge the Government to think seriously. I gather that five Secretaries of State are likely to be involved. Whoever they happen to be, they may be sensible under this Administration—I hope—but they may not be under some other administration. In that case, in a few years, we might have serious grounds for complaint. Requiring the Secretary of State to take such an active, interventionist role goes beyond all the provisions of the Sex Discrimination Act or the Race Relations Act, neither of which gives the Secretary of State that degree of power. My second worry is that the Commission for Equality and Human Rights has an enormously wide remit. It encompasses six different strands of equality, with three of which we are fairly experienced but the other three are entirely new. In addition, it takes on board human rights. A commission that takes on almost the whole range of everything to do with equality and human rights obviously has to deal with some extremely important issues. Therefore, it is important that two conditions be satisfied. First, none of the six strands of equality should be marginalised. Secondly, we should make every attempt to integrate equality with human rights, and we must make sure that neither is marginalised. Equality has been on the agenda for a considerable time—since at least the mid-1960s and, perhaps in a stronger form, the mid-1970s. Although human rights in one form or another have been part of our tradition of liberty, they are relatively new. There is a tendency to assume—I noted it in earlier speeches—that somehow equality and human rights invariably go together. Up to a point, they do. Beyond that, they not only part company but become mutually incompatible. For example, equality might warrant positive discrimination in certain cases. Human rights seem to rule it out, unless they are interpreted very widely. Equality would require equality between groups or communities. After all, the whole Race Relations Act is based on the assumption that a substantive proportion of a community should not be disadvantaged as a result of a requirement. Here we are talking of equality or parity between not only individuals, but groups. That kind of thinking comes easily and naturally to a discourse on equality, but does not sit comfortably with the discourse on human rights. Had I the time, I would like to spend considerable time on that; it is what I teach in universities and about   what I have written. However, I would not like to bore the House with some of the technical and philosophical difficulties that the two subjects raise. I can think of many jurisdictions where equality and human rights have not gone hand in hand. Therefore, we want to make sure of two things. First, how do we make sure that all strands of equality are adequately represented and their specificities appreciated? Perhaps one point on that might be to have six deputy chairs, each in charge of one strand of equality. If that becomes extremely cumbersome or difficult, we could at least identify major strands of equality and make sure that each of them was under the jurisdiction of a deputy chairman. If we cannot do that, I would like to return to the point made earlier by the noble Lord, Lord Lester. We have a disability committee within the commission. Understandably, I wonder why we should not think in terms of similar committees and advisory groups for race, gender and perhaps other forms of discrimination. As I said earlier, human rights and equality can conflict, so it is vital to be clear right at the beginning that there are possible sources of tension. If we sail through the assumption that conflicts will never arise, we will be inviting trouble.