Enterprise and Regulatory Reform Bill

Debate between Baroness Hussein-Ece and Lord Lester of Herne Hill

Wednesday 9th January 2013 Grand Committee

[Baroness Hussein-Ece]

My Lords, I, too, have put my name to this amendment to move towards greater direct parliamentary accountability for the Equality and Human Rights Commission. As the noble Baroness, Lady Thornton, said, this could be advantageous as a tidying-up exercise. It needs to be done. Given all the criticisms that the commission has faced from individuals and others, some of which have been about its accountability to Parliament, I am slightly disappointed that the Government, in drafting these various changes, did not take the opportunity to look at making the commission better able to fulfil its mandate as Britain’s equality regulator and national human rights institution in accordance with the Paris principles, as the noble Lord, Lord Low, said.

Unfortunately, the commission has come under sustained attack. Some of that has been quite intense and some of it has been justifiable, but a lot of it has been rooted in the past and has not recognised the work that the commission has done, how much progress has been made and how much the commission has moved on from those early years when the three organisations came together.

In terms of greater accountability, I think that what is proposed would be desirable. It would ensure greater transparency and openness. It would assist the commission in its statutory responsibility to assess how the Government comply with their domestic and international equality and human rights obligations. Parliamentary accountability would provide the commission with more independence from the Government in order to fulfil this role rather more impartially. At the moment, we do not have the best of both worlds. The commission is partly accountable to the Joint Committee on Human Rights and it is partly accountable to the Minister through the Government Equalities Office. As the noble Baroness, Lady Thornton, said, that relationship has not always been positive; it cannot be deemed to have been a successful relationship.

There has been turbulence as a result of reorganisation. With each reshuffle—every couple of years, it seems—the equalities unit and, by virtue of that, the commission have been shunted about. I think that it is on its fourth or fifth government department. As was said, it was initially under the Department of Trade and Industry, then the Department for Communities and Local Government and then the Department for Work and Pensions; then it was standalone and now it is with the Department for Culture, Media and Sport. That does not provide the organisation with the stability and continuity that are needed. These constant changes have in some respects been detrimental to the commission’s work and some of the blame for that has to lie at the door of the last Government, as has been acknowledged.

There have also been problems with the sponsoring department. The commission has never had, certainly in the three years when I served there—others may bear me out on this—the independence to act as other non-departmental public bodies have been able to. For example, permanent senior appointments have always been at the behest of Ministers giving the go-ahead. I found myself in the situation when, after the Daily Mail, the Daily Telegraph and other newspapers criticised how much was being spent on consultants for temporary positions, we advertised at great expense for a permanent chief executive. That was then stopped because, for whatever reason, it was not deemed to be the right time. That meant that there was another delay. The acting chief executive continued and it was a couple of years before we had a permanent chief executive in place. The same has happened with other senior appointments when the commission was not given permission by the Government Equalities Office, through the Minister, to appoint a permanent director for various positions. It was quite unfairly pilloried in the media for wasting public money when it did not have the independence to make such appointments. If we are going to have an organisation which we want to be independent and robust, it has to have freedom in that regard.

In order to retain the commission’s “A” status as a UN accredited national human rights institution, it needs to be assured and shored up. On occasion, there have been letters threatening to remove the “A” status of the commission purely because of activities from government departments that have been outside its control. It is time to allow the commission to have the consistency, the stability and the independence that it needs but also to be robustly accountable to Parliament. Models for other regulators and national human rights institutions have already been mentioned. There are others, including Her Majesty’s Inspectorate of Constabulary, the Parliamentary and Health Service Ombudsman, and the Electoral Commission, which we could look at and which work perfectly well.

Accountability to government would allow the commission to work across government bodies. That has been a problem, particularly when the commission has wanted to look at issues which do not come under the remit of the sponsoring committee or department. There have been problems about working cross-department as well. This proposal would give it the freedom to do that and would satisfy the Cabinet Office test for independence and accountability against which all public bodies are reviewed every three years. It would also allow the commission to formalise relationships and fulfil its mandate as a regulator, which it has not been able to do. I strongly recommend that the Government look at this and I will be very interested in what the Minister says in reply as to whether the Government will look positively at this.

I know that in previous discussions—I am grateful that the Minister has made herself available for discussions and briefings—the Government have not felt that this is an issue and that it should not be touched. It is interesting that for other things legislation is needed, whereas, so far, something that would make this organisation far more accountable is not deemed to be needed, although I am hoping to hear a more positive reaction today. The appointment of the chief executive and of commissioners would be subject to parliamentary ratification. For those who have followed some of these things in the media recently, the last tranche of appointments of commissioners has not been exactly exemplary and probably would not have been tolerated at other organisations.

In terms of the commission being directly responsible, it could respond directly to parliamentary questions rather than the Government responding on the commission’s behalf, which is the problem at the moment. The commission’s budget also could be set by Parliament, rather than the arcane situation that exists. I seem to remember that as late as the end of February/the beginning of March of this year, the commission still did not know its budget for the coming financial year, which would be unheard of at any other organisation. I strongly endorse this amendment and believe that it could strengthen the independent requirement in Schedule 42 to the Equality Act 2006.

[Lord Lester of Herne Hill]

My Lords, I am sympathetic to the object of the amendment. I just want to supplement that great summary of the history given by the noble Lord, Lord Low, by adding one or two aspects.

When the previous Government introduced the 2006 Act, I was was pressing for something on exactly these lines and I was concerned about the Paris principles. Thanks to the creativity of the noble Baroness, Lady Ashton, in particular, we were able to write into that Act some guarantees of the independence of the commission which are still there and I am delighted to see will remain. We removed all the bossy, ministerial interference provisions that were originally in the 2006 Act and that would have given powers to Ministers to intervene all over the place in the commission’s work. All those were wisely removed by the previous Government. We then introduced an express provision stating that Ministers were not allowed unnecessarily to interfere with the commission—that is still in the 2006 Act. We also introduced an obligation on the Minister to make sure that enough funds were available to ensure that the commission could carry out its work effectively in accordance with its statutory duties. We also introduced a merit requirement for appointments. All those are still there.

One of the great problems, however—it has been referred to by my noble friend just now—is that the commission when it was set up became the orphan of Whitehall; that is, no major government department was willing to take responsibility for or ownership of it to give it the backing that it really needed. I can say as someone who was the unpaid independent adviser to the previous Government’s Minister of Justice and Lord Chancellor, Jack Straw, that I was unsuccessful in persuading the previous Government that the Ministry of Justice should take charge of this area, because, frankly, the civil servants at the time did not want to know. And so, a strange floating kidney was set up instead. It was not a proper department and it did not have any of the power and influence of a major government department. That led to all kinds of managerial and other failings from the beginning through lack of proper back-up within the Administration. This was not just the fault of Ministers; it was more a fault of senior civil servants, including a Permanent Secretary whom I went to, who said that they would rather not want to know, thank you very much, because it was too difficult or too hot a potato.

That is part of the background. As the noble Lord, Lord Low, has indicated, the Joint Committee on Human Rights on which I serve has several times advocated that there be proper parliamentary accountability, not only because of the Paris principles but because it is healthy in a parliamentary democracy with a body of this kind for there to be a proper relationship.

One thing to have changed since we on the JCHR made those reports is the appointment of the new chair, whom I am delighted to see in her place, the noble Baroness, Lady O’Neill. Her appointment was made only after the Joint Committee on Human Rights interviewed her and came to the conclusion that she would be admirably well qualified for the post. Another change is that the Joint Committee will now have the main responsibility for the work of the commission; it will not be split, I think, with the House of Commons committee. We are a Joint Committee of both Houses comprising six Peers and six MPs; we cannot be controlled by Government because one of us is a Cross-Bencher—we are the only parliamentary committee of which that is true—and we are not tribal or party-political in the way in which we conduct ourselves. We have real expertise going back for more than a decade.

--- Later in debate ---

[Baroness Hussein-Ece]

I want to come back on one point, if I may. In 2003 the Joint Human Rights Committee had three reports, and one of the clauses said that,

“as a guarantee of independence … Parliament should be directly involved in setting the budget of the commission”.

Can the noble Lord clarify that he said he could not see the point in that? He seems to be contradicting what the report said.

[Lord Lester of Herne Hill]

I was talking about an idea that I thought was being suggested—not that there be some kind of consultation but that Parliament itself, or a parliamentary committee, should agree and set the budget, rather than that being done by the Treasury and the responsible government department. Of course, it is possible to have consultation by a parliamentary committee on the size of a budget and how it is to be spent, but under our system of parliamentary government, it seems to me that the ultimate responsibility for deciding on the budget and ensuring proper accountability is through the accounting officer—normally a Permanent Secretary in charge of the department, who is then accountable to Her Majesty’s Treasury and to Parliament. We tried all of that when we looked at the Judicial Appointments Commission; we tried to ring-fence the budget of the Judicial Appointments Commission and of the judiciary as a whole, but failed to do so for similar reasons.

I am sympathetic to the idea of parliamentary involvement and accountability. All that I am suggesting is that the way forward is to encourage the Joint Committee on Human Rights, if it is willing to do so, with the consent of the Government, if they are willing to do so, to develop new protocols that will allow this kind of accountability to occur. I am sympathetic with the object, but I do not think that the amendment is the best way forward. Similarly with regard to annual reports, there is no reason why there should not be a report that is then scrutinised and discussed with the commission by the Joint Committee on Human Rights. It seems to me to be better to have an existing piece of expert machinery than to create a new Joint Committee of both Houses without purpose.

I say all this with no authority; I do not speak for the Joint Committee on Human Rights. It has not considered that; nor do I have any idea of whether the Government is be sympathetic. I am a member of the committee suggesting that as one way forward.