Equality Act 2010 (Specific Duties) Regulations 2011

Lord Campbell of Alloway Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Campbell of Alloway]

My Lords, the purpose today is to consider some reasoned opinions as to what should be done in a highly distraught situation. It has not been substantially debated as yet but it is time that we gave it time. I hope today not to divide but to consider what has been said. I am grateful to my noble friend, with whom I do not totally agree, and to the noble Lord, Lord Lester—with whom I seldom agree, but we disagree in amity—for what he has said, with which I do not agree at all for two reasons.

First, this is a question of religious freedom, putting it simply—the concept of it and the implementation of it. There are, inevitably, such matters as adoption agencies but it is wider than that and it applies to all religions. We are still a member of the EU, and those member states with written constitutions defend in them exactly the type of religious freedoms which we are discussing. Because they are defended in that way in those constitutions, they are not within the remit of any of the EU courts. We do not have a constitution and if we want to get out of the trap there is actually only one way, which has not yet been considered. That is why I am so grateful to my noble friend.

If we have a constitution Bill which makes the appropriate provision akin to those of others in the Union and it is approved by our Supreme Court—which now is, in effect, a constitutional court—we are home. Nobody has considered that but if you do not do it that way, you cannot do it at all. It is no use saying, “Oh, we will make statutes. We will do this, we will do that”. This was explained perfectly clearly. I took up the point with my noble friend Lord Pilkington after the debate, in our usual conversations which we had in a little room not far from here. He said, “Well, I had better find out a bit about this. I had a brilliant pupil who is now at the Bar—somebody called Armitage. I am going to ask him to send me an opinion”. I had never met Armitage. In fact he is a brilliant man, a first rate-lawyer, totally objective, and not in any way involved in politics. He wrote an opinion and I am talking to the effect of his opinion, which was my opinion too. My noble friend gave me a copy of the opinion and I am afraid I have lost it, but it is very important that it should be found, and perhaps Armitage could provide a copy.

This one short point has never been taken and never been understood. Unless you get a constitutional position, our courts will have to accept that they cannot be excluded from the European laws—putting it broadly—with which we are bound at the moment.

That was also in a sense explained by the noble Lord, Lord Sacks, in his article in the Times after the debate, in which the right reverend Prelate the Bishop of Winchester took one view, and the right reverend Prelate the Bishop of Oxford took the other view, and my noble friend Lord Waddington was concerned.

[Lord Taylor of Holbeach]

My Lords, I do hesitate to interrupt the noble Lord, but there are a number of people I know want to speak, and if he could wind up it would help the House in its deliberations. I do apologise to the noble Lord for raising it in this way.

[Lord Campbell of Alloway]

I have to say I could not quite hear what my noble friend was saying. If I have done anything wrong, I apologise. Should I shut up?

[Lord Shutt of Greetland]

My noble friend was suggesting that the noble Lord may well have concluded.

[Lord Campbell of Alloway]

I have, save for one point. This question of freedom of religion was raised as an amendment to the Human Rights Act, and it was supported by the right reverend Prelate the Bishop of London, another noble Lord and Lord Jakobovits. Within a very short time it was opposed by the noble Lord, Lord Lester, and the noble and learned Lord the Lord Chancellor, and withdrawn because of a message from Lambeth House indicating that it thought it could make some appropriate arrangement. Well, it was never done, and that remains at the base of this problem. Of course, if the amendment had been accepted, we would not be in this position and could have taken steps then.

[Lord Davies of Coity]

My Lords, it was not my intention to participate in this debate. However, as a result of listening to the comments of many noble Lords, I am driven to say a few things. Recently we had riots on the streets of Britain, and as a result there has been a lot of heart-searching about why people participate in this exercise—some for criminal reasons, some for other reasons. No one really knows why, and there will be some investigation into that. However, it strikes me that the pendulum of secularism and political correctness has swung too far. Consequently, we need to bring it back a bit. The way in which that can be done is by instilling more Christian standards and morality in our society.

These regulations discriminate against religious bodies, as has been said by the noble Lord, Lord Waddington. People who wear necklaces with a cross on, as I do, will be discriminated against, and that is wrong; people are entitled to have religious freedom and should not be discriminated against for that. I shall support the amendment of the noble Lord, Lord Waddington, today if he puts it to a vote.

--- Later in debate ---

[Baroness Verma]

No, my Lords. In continuing with this, the noble and learned Lord will see that we are trying to lay out a better informed basis for the duty, for public authorities to respond to their own local needs. It is not about central diktats that impose duties that have to be responded to regardless, but about being able to take into account what is needed by those public bodies in their particular areas. Once the noble Lord, Lord Low, has heard what I have to say, he will probably feel satisfied that we have addressed his concerns in what we are proposing.

Some equality groups would have liked us to have set very prescriptive specific duties, particularly regarding what needs to be published.

[Lord Campbell of Alloway]

I apologise. My noble friend assumes that our courts will not exclude matters of religious freedom but accept and adjudicate on them. I presume she accepts that, contrary to what I suggested.

[Baroness Verma]

If my noble friend allows me to continue he will be satisfied with what I am proposing.

The regulations before noble Lords now require public bodies to publish information to demonstrate that they are complying with the duty but give them freedom and flexibility to do that in the way that makes sense for their particular circumstances. That is the best possible outcome. The key to our approach is to move to democratic accountability through transparency. If service users and local groups do not see the information they need in order to see how their public bodies are performing on equality, they will rightly press for information to be published. And if the information shows insufficient progress, they will press public bodies to do better.

As I have said, we are commissioning the production of a toolkit which will help voluntary and community organisations to use the equality duty to hold public bodies to account for their performance on equality. In contrast, the January draft regulations were too prescriptive. Every meeting a public body had would have had to be logged and the minutes published, and public bodies would have had to publish information which was not helpful to the public in holding them to account, simply because they had looked at it. Smaller local authorities, in particular, were concerned that complying with those earlier proposals would have been too onerous. The Government have listened to those views, and share their concerns. The guidance will make clear what information public bodies should consider publishing. Crucially, the regulations provide flexibility, so that public bodies can develop approaches which fit with their particular circumstances. What is right for a small school will not be the same as what is right for a large Department of State, and this balance is right.

Before I conclude, I will respond to one or two points raised by noble Lords. The noble Lord, Lord Low, and others, have asked about the reviewing of the regulations. We will take note of the review of the regulations and consider how they have impacted and whether the public bodies have posed challenging objectives themselves—if not, we will have to address those as they come along. The review will include a major survey of public bodies and representatives of the different types of organisations, it will speak to the voluntary sector and the community sectors and it will also work from information from the Equality and Human Rights Commission.

The noble Lord, Lord Lester, comprehensively outlined what this Government are trying to do. I think that across the three major parties there is general agreement that we need to go forward by ensuring that public bodies are accountable, that they are able to show that they are taking due regard of the processes of ensuring that all protected characteristics are included in the forward planning of public bodies and the services they offer. In conclusion, I feel confident that the draft regulations will enable the public to hold public bodies to account for their performance on equality. This will be the real driver for delivering equality improvements and helping us achieve a society which is fairer and provides equal chances for everyone. I hope that the noble Lord, Lord Low, feels assured by my remarks.