Enterprise and Regulatory Reform Bill

Baroness Campbell of Surbiton Excerpts

Wednesday 9th January 2013 Grand Committee

Moved by

[Baroness Campbell of Surbiton]

27: Clause 56, page 54, line 40, leave out paragraph (a)

[Baroness Campbell of Surbiton]

My Lords, I must declare an interest, having been a founding commissioner of the Equality and Human Rights Commission and its predecessor, the Disability Rights Commission.

The Government say that the objective of their commission reforms is to focus on the areas where it can add value because of its unique role and functions. I fear that the Government have yet to articulate what they consider this unique role and functions are and the basis for concluding that. Further, I fear that they have failed to explain why a commission with fewer powers and tools at its disposal will be more effective than one with the role and powers bestowed upon it by Parliament only six years ago. Today we are being asked to debate the commission’s role without clarity as to what the Government believe its functions to be. I hope that the Minister can explain this further to allay our concerns.

The Government have described Section 3 as a mission statement and have argued that its breadth has hindered rather than helped the organisation to define its purpose. We must assume from this that the aim of repealing Section 3 is to leave the commission with a narrower and more manageable role. A narrower role may be rightly achieved in two ways—by reducing the scope and issues with which the commission might engage or by reducing the scope of opportunities for the commission to engage with those issues. I see no evidence that the repeal of Section 3 would help to achieve the former.

Section 3 is to all intents and purposes an extrapolation of the duties in Sections 8, 9 and 10 of the Act, relating to equality, human rights and good relations. It plays an important role in binding and focusing the commission’s various duties, but it does not enlarge the canvas on which the commission is to operate. If the Government believe otherwise, I would be very interested to know from the Minister with which equality and human rights issues the commission would no longer be expected to engage.

From Section 3 it is also clear that Parliament did not foresee the task of achieving this vision as one for the commission alone. It envisaged the commission using its powers to provide leadership and to motivate others. The capacity of the commission to identify and agree priorities rests on internal leadership and external expectations, not on the law. So it seems more likely that alongside the wider legislative and non-legislative reforms, the repeal of Section 3 will concern the question of what the commission is empowered to do about equality and human rights. I wholly accept that the commission should improve its strategic focus, but it does not follow that it will be more effective by having fewer tools at its disposal. As Abraham Maslow said, if the only tool you have is a hammer you will see every problem as a nail.

The proposals before us are not simply legislative tidying. Rather, they sit alongside a range of other reforms that would fundamentally change what the commission is able to do. Already, the Government have taken away the commission’s helpline and ceased funding it to provide grants and to arrange conciliation. They have said they do not believe that the commission should provide guidance on the law to dutyholders because its promotional role prevents it doing so impartially.

The Bill proposes to change the frequency of the commission’s reporting on the state of equality and human rights from every three years to every five. It proposes to remove its good-relations duty—the only power that enables it to engage directly in relations between citizens. Separately, the Government have launched a review of the public sector equality duty. The views of the Prime Minister and the Justice Secretary on the Human Rights Act are well known.

We did not wish to create an enforcement factory in 2006, and I would guess that we do not wish to do so now, especially in a Bill to reduce the regulatory burdens on business. However, there is a risk that this is precisely what this package of reforms, including the repeal of Section 3, will result in.

In 2003, the Joint Committee on Human Rights, in its report on the case for a human rights commission, recommended:

“The commission we propose should not be seen as another inspectorate, advisory body, regulatory authority or enforcement agency. Nor should it be a body with an adversarial or litigious approach to its mission”.

Section 3 embodies this idea, placing the emphasis on promotion by requiring the commission to discharge its functions in a way that encourages and supports change—something of which I am very much in favour.

This approach also marked the convergence of thinking from the social model of disability, the Macpherson inquiry into the investigation of the murder of Stephen Lawrence—today’s headlines in the Daily Mail are a potent reminder of its continuing relevance—and the concept behind the Human Rights Act: namely, that if as a society we wish to hold these values, we have to take proactive steps to make them a reality. It confirms the function of the organisation as an agent of social change, empowered to work with others and not tasked simply with answering complaints from those who feel that their rights have been violated—normally the most articulate. As Conservative MP James Brokenshire said in a debate in the other place, one function of the commission is to try to stop litigation and to encourage a culture in which there is not always a need for a litigious approach. I recall that this was one of the DRC’s most effective ways of working. It resulted in a seismic shift away from discriminatory practice towards disabled people, making it less necessary to go down the expensive litigious route.

The EHRC’s more celebrated initiatives derive from its ability to act beyond legal enforcement and to make recommendations on how society should take forward equality and human rights—for example, in its inquiries into the human rights of elderly people receiving care in their own homes, into disability healthcare and into the exploitation of workers in the meat-processing sector. In each case, the commission has identified the problem, investigated it thoroughly, convened the relevant parties to explore what needs to be done and made recommendations for policy and legislative reform.

Uncovering scandals in society that we would not otherwise know about and need to put right is the hallmark of a modern commission. Do the Government view such activity as campaigning? Is it not right that the commission should support progressive legal cases such as that of Sharon Coleman, which secured protection from discrimination for 6 million carers in the UK? Is the Minister suggesting that the commission should not have a role as an adviser to Parliament on equality and human rights implications of public policy and legislation? Should the commission not draw our attention to rights, risks, violations, discrimination or inequality, or propose to us how these might be remedied?

How do we imagine the commission will perform its role as the independent mechanism required by the United Nations Convention on the Rights of Persons with Disabilities, promoting, protecting and monitoring implementation of the convention, if it cannot recommend policy and legislative reform? I look forward to the Minister’s response to all these questions.

The fundamental distinction between a campaigning organisation and the proper role of a body such as the commission is that the latter must act consistently within its statutory authority as mandated by Parliament and in the public interest. Section 3 of the Equality Act exemplifies the values which made me a keen supporter of the commission, and I felt that it was the right time for the DRC to be part of a wider, united enterprise. Those values lie at the heart of what others, too, respect it for.

In their summary of responses to the consultation on reform of the commission, the Government noted:

“The majority of respondents were opposed to repeal and were concerned about losing the guiding principles and values set out in the general duty, which had been debated in Parliament during the passage of the Equality Act 2006”.

In a nutshell, Section 3 says to us, “We are all in this together”. By bringing together equality and human rights, it departed from the idea of people being defined only by their differences—their gender, disability, age or race, for example—to that of people being defined by their common humanity. As the Joint Committee on Human Rights noted, Section 3 echoes the Universal Declaration of Human Rights, which states clearly that,

“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

The inclusion of dignity in the commission’s general duty provides the glue to bind together anti-discrimination and human rights. This is not about equality as sameness and uniformity, but the pursuit of dignity and substantive freedom for each and every individual based on recognising and accommodating difference. The values set out in Section 3 are not new; they are not even contested. As the noble Lord, Lord Boswell, a great campaigner for disability rights, said of Section 3 during the passage of the Equality Act:

“From a one-nation viewpoint, I have no difficulty at all with the general duty in clause 3—that is what most of us are in politics for”.—[Official Report, Commons, 21/11/05; col. 1331.]

They are enduring but adaptable values which help us navigate a path through our modern, open and plural society while staying true to our traditions of family, community, liberty, tolerance and fair play. In these most difficult times, it is more important than ever that we do not cast such values to the wind. My amendment is very simple: it would put Section 3 of the Equality Act back where it belongs. I beg to move.

--- Later in debate ---

[Baroness Stowell of Beeston]

They are separate because the public sector equality duty review, which we will debate when we come to the noble Baroness’s amendment about the equality impact assessment, is about whether the public sector duty is operating in the way in which it was designed. Is it achieving its purpose and its aims? We are reviewing how that operates. We are saying that the core function of the Equality and Human Rights Commission is very much rooted in its responsibilities for equality and human rights. The removal of Section 3 does not weaken its ability to do what it exists to do. Its removal is because we believe that it is a statement which should not sit on its own as a responsibility for the commission but as a responsibility for a wider set of public bodies, including Parliament.

[Baroness Campbell of Surbiton]

My Lords, I thank the Minister for her genuine attempt to understand and respond to all our arguments against removal of the general duty. I mean that; we have spent time together discussing this in detail. I also thank all noble Lords who have supported the amendment and I hope that they will forgive me if I do not respond to them by name. I am sure that they would want me to save my breath for my response.

I wish that I felt more assured—I really do. For myself and dozens of other people and organisations around the country, the significance of the general duty is quite apparent. I still struggle to understand how the repeal of Section 3 will assist the commission’s future. I do not feel that we have had tangible evidence or examples of what it does now that it would do better if the duty were removed.

We have talked a lot today about perception and mission statements. I was sorry that the noble Lord, Lord Lester, was not with us when I made my contribution. He asked someone to explain to him what is added by Section 3. Perhaps the noble Lord does not believe that the power of perception is as strong as the hand of the law. I say to all noble Lords that in my experience perception, not the law, has been the main liberator and discriminator all my life. I am positive that I am not alone in this.

The Minister also tells us that it is wrong for a statutory body to campaign for law or policy reform and that it should focus on promoting the enforcement of laws agreed by Parliament. I agree but—there is a but—there is so much more to a viable equality and human rights commission that would not, if it lost the general duty, have a mandate sufficient to comply either with the Paris principles regarding the status of national human rights institutions or with EU law regarding the mandate of national equality bodies. The Government need to think about this very carefully. Their view of us is really important in this area. I feel that we need more compelling examples of what will be improved by repealing Section 3 as I have heard none so far.

Although I will withdraw the amendment, I fear that if we do not have anything more convincing we will be back at Report, probably saying the very same powerful things we said today. The noble Lord, Lord Ouseley, rightly said, that this is not just about lawyers and the law; it is about people. It is wrong to say that Section 3 is a political statement. It does not imply to me or others that this is a unique role for the commission. I dare say that all the voluntary organisations in this country would be very hurt by that statement because they take Section 3, the guidance and the authority of the commission and run with it. If it is gone, we will be back to fragmentation. As I said, we are all in this together. Without it I will not feel that I am together with anyone. I beg leave to withdraw the amendment.

[The Deputy Chairman of Committees (Lord Geddes)]

My Lords, before putting the Question for withdrawal, it may be helpful to the Grand Committee if I say that I have received advice that in order to take part in discussion on an amendment, a noble Lord must be in his place throughout debate on an amendment, most particularly while the proposer of the amendment is making his or her speech. Thus, with great respect to the noble Lord, Lord Lester, his intervention, although out of order, is, nevertheless, on the record and will remain on the record.