Public Bodies Bill [HL]

Debate between Lord Boswell of Aynho and Lord Lester of Herne Hill

Monday 7th March 2011 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I, too, have put my name to this amendment and the others in the group. As the noble Baroness, Lady Thornton, has already mentioned, I did play a part when we were enacting the Equality Act 2006, the legislation which provided safeguards for the Equality and Human Rights Commission when it was being set up. The particular safeguards that we negotiated when the noble Baroness, Lady Ashton of Upholland, was the Minister were, first, that the Secretary of State should pay to the commission,

“such sums as appear to the Secretary of State reasonably sufficient for the purpose of enabling the Commission to perform its functions”.

The second one provided that the Secretary of State,

“should have regard to the desirability of ensuring that the Commission is under as few constraints as reasonably possible in determining—

(a) its activities,

(b) its timetables, and

(c) its priorities.

The third concerned the merit appointment of the commissioners. Those safeguards were put in because originally the Bill would have allowed Ministers to be very interventionist in relation to the commission. The then Government showed what I think was open-minded wisdom in realising that these safeguards were needed. So naturally I was concerned when I saw that the commission was in three schedules and, indeed, in Schedule 7, too.

I pay tribute to the patience of Ministers, but especially of their civil servants who have to be even more patient, in discussing the kind of safeguards that are needed not only in relation to this commission but also to any other bodies that are subject to the powers contained in the Bill. We are now very close to agreeing on general safeguards, without which I would have very great concerns, particularly in relation to the commission. But I am not quite in a position to tell the Committee what I think might be the safeguards that would be an improvement on Amendment 175, which is the amendment that the Committee has in effect already approved. It is important that these safeguards are put in place during the Committee stage in order that we know where we are when we get to the Report stage.

The particular safeguards that I think are very important for this commission are, first, safeguards of its independence when it is performing a judicial function, as it does, of course, when for example it is deciding whether to find someone liable for unlawful discrimination. It has to act independently and impartially in doing that. Secondly, the commission has oversight or scrutiny functions and can bring legal proceedings. Often those proceedings are brought against government departments, so it is important that Ministers should not be in a position to try to nobble the commission or persuade it not to perform its strategic law enforcement functions. Thirdly, it is important that there should not be overkill; that sledgehammers should not be used to crack a nut.

If those safeguards were in place, the Equality and Human Rights Commission would be quite wrong in suggesting, as it has in its latest briefing, that it should be outside the Bill altogether. Provided those safeguards are in place, the commission should not be immune from the kind of changes which it would be sensible to make and which are indicated in the briefing that the Government have published. Unfortunately, we do not yet have the consultation paper, but we have the benefit of a briefing note from the Government which indicates that they consider that there is a clear need for an independent equality regulator and a national human rights institution, and that the original aims of the commission are very much in line with the coalition Government’s new approach on equality as set out in the equality strategy, Building a Fairer Britain—I say amen to that.

The Government have also made it clear that difficulties in the transition process from the old commission and the breadth of the new commission’s duties have contributed to the underperformance of the commission to date, referring among other things to the report by the Joint Committee on Human Rights, to which I was party, as well as to the Comptroller and Auditor-General and the Public Accounts Committee. That is a good reason why the Government, although they have decided to retain the commission—I am delighted by that—wish to reform it. They have also said that they want the commission to become a valued and respected national institution focusing on its core role as a strong, modern equality regulator and UN-accredited national human rights institution but being able to show that it is using public money wisely. I do not want to wash linen in public, whether clean or otherwise, but there is no doubt that there have been arguments between the commission and the Government when the Government have sought to ensure proper financial regulation and accountability and so on and the commission has asserted its independence. I suppose that I can claim to be one of the great-grandfathers of the commission since I was there even in the 1970s when we first set up the EOC and the CRE. I think that there is a difference between self-government, which provides the independence which is needed, and irresponsibility when it comes to financial control. Therefore, provided the safeguards are in place, I think that the commission has to be accountable—I am sure that it would not disagree with this—when it comes to value for money.

What I suggest this evening—or rather this morning, since we have now just passed midnight—is that we should not proceed further with this subject other than to listen to the Minister, because we need to get the safeguards in place as soon as we can. Those safeguards are generic; they are to apply not only to the commission. Once they are in place, I believe that the Government’s aims will be legitimate and that we can proceed further.

Lord Boswell of Aynho: My Lords, it is indeed a very late hour, and I rise only briefly to thank the noble Baroness, Lady Thornton, for raising this issue in quite moderate terms. I also thank my noble friend Lord Lester for the way in which he has nuanced it in relation both to the judicial or quasi-judicial activities and responsibilities of the Equality and Human Rights Commission and to the need for what might be termed a proper look at administrative reform, subject to the necessary safeguards.

I have had a developing interest in this matter over a number of years. At one stage in another place, I held a Front Bench brief on behalf of my party for disability issues at the time when the first discussions were taking place about a coalescence of the various bodies. I also had, for separate and unrelated reasons, an interest in both gender and racial equality issues. I supported, and I am very glad that we have effected, the merger of these various bodies. However, just as in relation to the previous amendment we discussed I bear no malice towards the Church of England in suggesting its inclusion in the Bill, I bear no malice towards the Equality and Human Rights Commission in suggesting that its position should be maintained within this schedule.

We need to concentrate on its main responsibilities while preserving its independence. Having had, because of those Front Bench responsibilities, dealings with Trevor Phillips, for example, at the time these bodies came together, and a number of constructive discussions about this, I do not think things have quite gelled as they might have done. There is more work to be done in taking the inefficiencies out of the system and in concentrating on core business. However, I would not like that to be interpreted by the Minister or anyone else as code for saying that there is no role for the EHRC. In the previous Equality Bill, when I had become before my retirement from the other place a Back-Bencher, I had immense support from the EHRC on some of the issues—for example, in introducing a long and complex amendment about a principles clause, which did not commend itself to the previous Administration, and also, indeed, in suggesting that there might be a human rights responsibility alongside the public sector equality duty.

As my noble friend Lord Lester said, there are some very important points about turning the ability of the commission to operate independently where there are defects, or arguments about defects, in the public sector. That integrity has to be maintained. The basic job which the commission was set up to do is worthwhile. We need to make sure that we clear out of the way any of the clutter and that that duty is clearly and effectively discharged.