Enterprise and Regulatory Reform Bill

Lord Deben Excerpts

Monday 4th March 2013 Lords Chamber

[Lord Deben]

My Lords, I put my name to this amendment because it seems a very fundamental and simple question. Is it right that a person who is a subject of Her Majesty in this country shall not be able to claim against discrimination when they would be able to in India or Nepal, or indeed in Bangladesh? Is it right that when we have clear evidence that caste has become a feature in this country, they have no defence against it?

I have had very informative and helpful discussions with the Minister responsible in another place and the usual extremely well thought-out discussions with the noble Baroness. It is with considerable sadness that I have to say to her that I am not convinced by the Government’s argument. First of all, it has only just become the Government’s argument. In opposition, the Conservative Party said that this was necessary because it was the only way in which more than 400,000 of Her Majesty’s subjects could properly be protected. If it were possible for the Government to explain to the House that in taking office there were circumstances of which they were unaware that changed their mind, then I would be happier.

However, that is not the argument that has been put forward. What has been suggested is that we need to have yet another investigation. As the noble and right reverend Lord, Lord Harries, rightly says, the investigation by the previous Government was not by some small, unimportant body without respect, but by exactly the people to whom one might turn to find that answer, and their answer was unequivocal. It seems difficult to suggest there should be yet another investigation unless there is a clear statement of what has changed since that one, what was missed out by that one or what the Government felt should further be looked at which had not been looked at. Yet that is not anywhere in the Government’s response.

I believe we have to look at this extremely carefully for a reason which will be perhaps more understood on these Benches than anywhere else. If there is one thing that really annoys people about immigration, it is when people bring to this country attitudes that are wholly contrary to the traditions of Britain. That is why people have reacted so firmly against the attempt, for example, to introduce Sharia law into this nation. Most people in Britain feel that we have a society that should be welcoming, but it should be welcoming on the terms of the tolerance that has been so much part of our history.

There are, after all, fewer Jews in this country than there are Dalits. They are wholly protected under the laws. There are fewer Sikhs in this country than there are Dalits, but they are wholly protected under the laws. Most people would say that there is no place for discrimination by caste in Britain. If there is no place for that discrimination, how can it be that all the other discriminations for which we think there are no place are covered by the law but this one alone is not?

I have to say to my noble friend that I find the arguments used deeply distressing because they go like this: first of all, that we do not know quite enough about it so let us have a further investigation. Frankly, having had the investigations up to now, if it turns out that there are no cases, what harm will have been done? We will have protected people and they will feel protected. If it turns out the investigation that took place under the previous Government was unnecessary and its findings were not true, then we have done no harm. However, if we leave it for another year—and I am told, with some authority, that we will have to wait only a year for a further investigation—we will have another year in which people have no recourse, and at the end of that we may still have no recourse, because there will not necessarily be a legislative opportunity for us to bring this home to the Government.

The second reason that I find so difficult to hear is that we will not deal with it that way anyway, but will deal with it through education, with or without the investigation. Here I do not want to follow the noble and right reverend Lord, Lord Harries, except to say: what do people say in this education? A Dalit in a class says “Okay, I shouldn’t be discriminated against, but what happens if I am?”. The fact that there is now education on this means that the answer will be, “Tough luck, because there is nothing you can do about it, as we have specifically refused to ensure that there is an opportunity for you to take your case”. That is a recipe for lack of integration, poorer community relations, and a worse situation than would have arisen had we had no education or had not raised the matter in the first place.

The third reason that comes up is one that I find more distressing than any other. Every Minister who speaks about it—and we have two Ministers of particular quality here—assures me that they are totally committed to the eradication of discrimination, which includes the eradication of discrimination on the grounds of caste, but that theirs is a better way to do it. I believe that a decision has been made somewhere else that is not on this ground at all, and is not worthy. It is no good listening to those who, in their own circumstances, have a view of caste that is different from that of the majority of us in this House.

In Britain no one should suffer discrimination on the grounds of anything that they cannot help. They cannot help their sexual orientation and their colour; they very often cannot help their religion, or they have chosen that religion; and they cannot help their gender. What on earth is different when they cannot help their caste? You can change the name from “untouchable” to Dalit, but you cannot change the fact that some people are treated in an appalling way, simply because of the person they were born.

I have absolutely no doubt that it would be utterly wrong for us to say to the world that we had the opportunity to protect people from this disgraceful discrimination but decided not to do it because we had to have another investigation. I invite all noble Lords to look back on the history of the fight against discrimination. What happened at every point? Those who did not want to change suggested that we looked again and examined it once more. They said, “Let education deal with it; it’ll all come right in the end”. It was only when we changed the law, however, and made it wrong not only morally but legally as well, that we actually had a change in attitudes and gave the protection which was needed.

I want to finish by saying something very tough: if anybody in this House has any history of discrimination—whether it is the small amount that Catholics have today, which is still real, or the great amount that people have because they are of colour or Jewish or in any other minority group—let them make sure that they do not fail the Dalits, because they have a greater responsibility than those who are lucky enough not to have suffered discrimination as a subject of Her Majesty.

[Lord Avebury]

My Lords, I have seldom listened to a more powerful speech in this House. I agree with every single word that was said by the noble Lord, Lord Deben, except for one very minor point which has to be mentioned. The Government are not proposing to undertake any further investigation, but simply to review the investigations that have already taken place. Therefore, what they are proposing to do is of even less consequence than he credited them with.

We already know, from the study undertaken by the National Institute for Economic and Social Research—which was mentioned by the noble and right reverend Lord, Lord Harries, in introducing this amendment—that caste discrimination actually occurs in the United Kingdom. That study confirmed that discrimination and harassment of the type that would be dealt with under the Act exists in the UK, as was reiterated only the other day in a letter from one of its authors, Hilary Metcalf, to my noble friend Lord McNally.

The Government now recognise the existence of caste discrimination. As the Minister for Equalities said, in words very similar to those used by my noble friend Lord Deben just now,

“We obviously do not think that anyone should suffer prejudice or discrimination, whether it is because of caste or any other characteristic. Such behaviour is wrong and should not be condoned, whether or not it is prohibited by legislation”.

However, no Minister has explained properly, in the extended correspondence that we had with the Government over the past three years, why caste should be treated differently from age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation—the protected characteristics that are already covered by the Equality Act.

The Minister Helen Grant MP wrote to us on 5 February, saying:

“We need to be satisfied that it is the most appropriate and targeted way of tackling a specific problem before legislating”.

I respectfully suggest that Parliament wisely decided that legislation was indeed the right way to tackle discrimination across the board after many years of trying to apply remedies to particular kinds of discrimination such as for race—with the Race Relations Board—or gender, by compliance with the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women. Nobody ever said that before including race and gender in the Equality Act, we needed to be satisfied that it was the most appropriate and targeted way of dealing with the problems that still remained. Legislation was seen as the top storey of the edifice of ways of tackling discrimination of all kinds. The onus is on the Government to prove that, in the unique instance of caste, we should return to non-legal remedies which proved insufficient in respect of the nine existing protected characteristics and are no substitute for the right to take complaints of discrimination to court.

The original reason given by the Government for failing to enact Section 9(5)(a) was that there was no consensus on the need for legislation even among the communities that were potentially most affected by it. We naturally interpreted that as meaning the Dalit communities whose members are the victims of this discrimination. However, it emerged in a letter from the noble Baroness, Lady Verma, to the noble Baroness, Lady Prashar, of May 2012, that the reference was to the wider Hindu and Sikh communities. In that sense, there is never a consensus for legal measures against particular kinds of discrimination. The policy of ending apartheid in South Africa was vociferously opposed by certain groups within the white population. At one time, plenty of men’s organisations were opposed to women’s equality, including, I may say, Parliament itself, and there are still institutions opposed to LGBT rights. Fortunately, the absence of consensus was not used as an argument for blocking legislation for the rights of racial minorities, women or gay people.

However, I realised quite recently that some Hindus and Sikhs believe that what we are seeking to do labels their communities as a whole as persecuting Dalits. I assure them that nobody has any such idea, any more than the Equality Act labels native British as being intrinsically racist, or men as being intrinsically misogynist. There are already cases where litigants such as the Begraj have done their best to use the existing law to make a claim on caste discrimination grounds in the courts. However, there has been no suggestion that a handful of cases point to a general pattern of conduct among people belonging to certain religions.

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There is a clear demand for legislation; that has been put forward without any doubt today. That demand is from those who are affected as well as from those who are speaking for them today. But new legislation is always a big step. Before taking it, we need to be satisfied that it is the most appropriate and effective way of tackling the specific problem. My noble friend Lord Deben, as other noble Lords have rightly acknowledged, made an incredibly powerful speech in this debate. One of the things he said was that no one should suffer discrimination on the grounds of something that they cannot help. He was referring to castes and I agree with him. However, there are other people who suffer prejudice in this country because of their class, their background or their place of birth but we have no legislation on these matters and we deal with them through other approaches.

[Lord Deben]

I understand that, but none of those things is fixed in the way in which caste is fixed. Those are things which can be changed—sometimes they are just changed by speaking differently. You cannot change your caste, and that is why it is an exact parallel with race and may indeed be included within race. Surely it is not acceptable to say that there is anything else like caste.

[Baroness Stowell of Beeston]

As I continue laying out the Government’s response, I will answer more directly the points that my noble friend has made. I want to make it plain that there are other forms of prejudice from which people in this country suffer to a great extent for which no clear, direct legislation exists to prevent it happening.

The noble and right reverend Lord, Lord Harries of Pentregarth, provided some rather shocking evidence and stories of discrimination outside the UK, as did other noble Lords. The Government have to legislate to tackle what happens in this country; that is what we—what all Governments—must ensure that we do. The noble Lord, Lord Alton, and the noble Baroness, Lady Flather, talked about the huge number of crimes committed against Dalits in India. We have existing criminal law here in Great Britain for dealing with those kinds of assaults and other crimes if they take place in this country.

At this point, let me make it clear that we remain willing to consider whether there may be a case for legislating specifically in regard to caste discrimination, and hence our willingness to meet representatives of the key groups. I will return in a moment to the circumstances that would lead us to such a decision, and why we remain unconvinced that legislation is the best answer. It is clear from the NIESR report, which is the most robust study available so far, that the majority of incidents of caste-related prejudice or abuse would not be covered by equality legislation. Our assessment is that the great majority of cases in the report are either in areas outside the legislation—such as in relation to volunteering, which is not covered by discrimination law—or would already be subject to redress through a range of measures from claims for constructive dismissal to criminal prosecution. That said, we are clear that no one should suffer prejudice because of caste. Such prejudice should not be condoned and it should never be ignored, and that is why I am pleased that the Government have announced that they are taking clear action to tackle caste prejudice and discrimination through an education initiative. I thank my noble friend Lord Sheikh for his support for this initiative, and I must say that I was rather surprised that the noble and right reverend Lord, Lord Harries, dismissed it as being patronising and interfering. Even if a new law on caste discrimination was to be introduced, without education it would not address the underlying causes.

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[Lord Deben]

I hope that the Minister will not accept this amendment because it seems to me that this is a good example of substituting reality with a bureaucratic answer. Surely what we are trying to do in this legislation is so to embed it in people’s attitudes and concepts that there is no need to have complicated bureaucratic form-filling and ticking-off. Most of us who run businesses would not dream of having a provision like this. However, most of us who run businesses would also be very insistent that decisions were made with a proper understanding of their impact on women as well as men and on minorities as well as majorities.

I hope the Minister will accept that many in today’s society consider that these issues should perfectly properly be dealt with in law—a law which I am happy to say looks as if it will be more inclusive than it has been up to now—but that people should themselves find the best way of handling them. The Government should not present people with a detailed arrangement such as appears in this amendment, which I am afraid very often becomes a substitute for action. People may say, “I have done my assessment and therefore I don’t have to think”. What we really need is for people to think creatively about how best to do these things. It is very much better not to lay down a recipe of the kind proposed in the amendment, which slightly reminds me of the nannying schemes which have made these provisions less popular than they ought to be. I am afraid that many people do not think of equality as a progressive and positive thing but rather as merely another drudgery which is laid on them. We do not want that; we want a society where equality is included as a natural way of looking at how you run a business, a local authority or a public authority. We do not want someone to feel that he or she has done their bit of homework, has ticked the boxes the right way and can now forget about it. I am afraid that the “I can now forget about it” syndrome cannot be legislated against but is very often the result of an amendment such as the one before us.

[Lord Harris of Haringey]

My Lords, having listened to all the debates today in your Lordships’ House, I am very conscious that there is a clear consensus among your Lordships on the importance of all organisations, particularly public sector organisations, working towards achieving equality. That has emerged in all the discussion that we have had. Core to that is the equality duty on public bodies.

I understand that the Government are reviewing all this but I hope that this evening’s debate will be influential in ensuring not only that they recognise the value of that general equality duty for the whole of the public sector, but also see the value of strengthening it in the way that this amendment seeks to do. My experience is that, if you are to achieve equality in the workplace—equality in terms of the way in which you provide services—it requires several things to be in place.

First, it requires visible leadership from those responsible for the organisation or in charge of it that shows that they believe that this is important. Secondly, it requires that policies are made in an evidence-based way; that information is used to assess how the policies are working, how the services are being delivered, who benefits and who perhaps is missing out. That requires the collection and collation of information, so that those in charge of the organisation can make the appropriate decisions. It also requires a degree of enforcement. But to say that you can achieve all of these things only by enforcement or only by one element of those different requirements is to set the arrangement up to fail.

I have listened with great interest to the speech of the noble Lord, Lord Deben, who has highlighted that you do not want to create a tick-box mentality. That is absolutely right and is true in all sorts of areas. That is not what you want to achieve. However, if people are trying to apply the general duty on equality—or indeed what would be implied by this amendment in terms of the way in which equality impact assessments are concerned—in a tick-box mentality, then you will lose out entirely. This amendment sets a framework by which all public authorities can say, “We are doing our job properly and effectively”. How can you argue that there is something overprescriptive by saying that the duty of the public authority should be to assess and consult on the likely impact of its proposed policies? Surely that is sensible good practice. How can you say that that is overprescriptive? It is simply requiring public authorities to do what is right.

Similarly, requiring public authorities to monitor their policies for any adverse impact is again requiring that they do what is right. It is not being overprescriptive; it is simply saying to them, “This is what you should do to deliver your general duty on equality”. This is not an overprescriptive amendment; it is something that is there to provide a framework which public authorities can use.

I am also very clear that, in making decisions, public bodies have to look, check and see what the implications are. These assessments provide a framework which requires them to consider all the relevant factors in doing that. I know that when we make a decision on a public body we are required to consider all the relevant considerations and not consider those considerations which are irrelevant—I forget the precise form of words, but that is the standard rubric. This provides a framework to make sure that all the relevant considerations are being addressed. More importantly, it provides an audit trail, so that anyone looking at it can see how a decision has been taken and how the different issues have been factored in because there has been an equality impact assessment. That places quite a pressure on those making decisions that they have not only considered all the relevant factors but are able to justify what they have done. That is an extremely important and very good discipline for those who make public decisions.

The equalities duty has been an important step forward for public bodies in this country. Some of them still struggle with how to implement it and some still have a long way to go but, as a basic building block for ensuring that public services are delivered fairly and in line with the objectives that I think all of your Lordships have said they support during the course of various debates today, they have been extremely valuable.

I mentioned at the beginning that one of the requirements for delivering equality, whether at local level, public body or by government, is leadership. I hope that the Government will show clear leadership in agreeing that there is an importance to the public sector general duty on equality and accepting the importance of this amendment, which provides a sensible framework for equality impact assessments.

The Prime Minister is worried that this is going to become overbureaucratic. I suspect that by providing a framework in legislation for what is needed, some of those overbureaucratic elements will disappear simply because people are no longer trying to interpret what might be a necessary way of doing this and erring on the side of caution. This is a way of setting out a framework which will enhance the work that public authorities should be doing to promote equality.